author: HUDOCK, Judge: CHULLO, Judge, JOHNSON, Judge,

text:
    617 A.2d 764
    In the Interest of A.P. Appeal of A.P.
    Superior Court of Pennsylvania.
    Argued June 1, 1992.
    Filed Dec. 7, 1992.

      Bradley S. Bridge, Philadelphia, for appellant.

      Alan Sacks, Asst. Dist. Atty., Philadelphia, for Com., participating party.
    Before ROWLEY, President Judge, and WIEAND, CIRILLO, OLSZEWSKI, MONTEMURO , POPOVICH, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.

       The Honorable Frank J. Montemuro, Jr., now Justice Montemuro, participated and voted in this matter prior to his elevation to The Supreme Court of Pennsylvania.

   HUDOCK, Judge:

The question which brings this matter to this Court en banc is: What means, if any, are available to a juvenile to perfect his constitutional right to appellate review of a disposition order when his counsel was ineffective in failing to file a direct appeal, and relief is unavailable under the Post Conviction Relief Act?

This appeal comes to us as an appeal from an order denying Appellant’s (A.P.’s) motion to appeal nunc pro tunc. A.P. was adjudicated a delinquent following a hearing on February 26, 1990, concerning charges that he possessed sixty-four vials of crack cocaine. He was placed on probation at the conclusion of the hearing. A.P.’s counsel filed post-trial motions which were denied on April 16, 1990. On May 4, 1990, counsel filed a motion for leave to appeal within thirty (30) days (the nunc pro tunc motion). This motion was denied on May 9, 1990. A.P.’s trial counsel then filed a notice of appeal from the denial of post-trial motions on May 11, 1990, and a notice of appeal from the denial of the motion for nunc pro tunc appeal was filed May 17, 1990.

A.P. frames the issues as follows:

1. Did not the lower court err by refusing to grant appellant leave to file an appeal nunc pro tunc where the failure to timely file [a] notice of appeal was due to ineffective assistance of counsel that was apparent on this record?
2. Did not the lower court err by refusing to suppress a controlled substance found during a search incident to an arrest where the arrest was made solely because appellant was an Hispanic male, about 5'8" in height, seen exiting a house where a homicide had occurred five days earlier and the suspect in the homicide was “possibly” an Hispanic male about 5'8" in height?

Appellant’s Substituted Brief at p. 2. We will discuss the issues in the order presented above.

A.P. claims that he has been denied his right to a direct appeal because of the trial court’s denial of his motion for a nunc pro tunc appeal. He claims that because he is a juvenile, a nunc pro tunc appeal is his only means for challenging the stewardship of his trial counsel who, he claims, caused him to lose his appeal rights. We agree.

We note, initially, that both juveniles and adults alike have a right to appeal from a court of record. Pennsylvania Constitution, Article V, § 9 reads:

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

Because juvenile court is a court of record, the right of appeal attaches. We also note that juveniles are entitled to the assistance of counsel, In re Gault, 387 U.S. 1, 87 S.Ct. 1428,18 L.Ed.2d 527 (1967); 42 Pa.C.S.A. § 6337 (Purdon 1982), which includes the right to effective assistance of counsel. As we recently held:

To assume that what is meant by assistance of counsel does not include the concept of able, effective representation is to ascribe to the statute a ludicrous result, that is, that such counsel need not be able to perform appropriately, or indeed at all, to fulfill the legislative mandate. The right to counsel prescribed by the Juvenile Act must be read in pari materia with the Rule of Statutory Construction, 1 Pa.C.S.A. § 1922(1), which specifies that:
In ascertaining the intent of the General Assembly in the enactment of a statute, the following presumptions, among others, may be used.
(1) That the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable.
See also, Gruver v. Gruver, 372 Pa.Super. 194, 539 A.2d 395 (1988).

In The Matter of Brandon Smith, 393 Pa.Super. 39, 43, 573 A.2d 1077, 1079 (1990) (en banc). Therefore, A.P. was not only' entitled to the assistance of counsel, but to the effective assistance of counsel in the proceedings against him.

Unlike the review necessary for ordinary claims of ineffectiveness where we would first determine if appellant’s ineffectiveness claim is of arguable merit, see generally, Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988), counsel’s failure to properly effectuate an appellant’s constitutional right to appeal, unless expressly waived by an appellant, is ineffective per se. See Commonwealth v. Wilkerson, 490 Pa. 296, 299, 416 A.2d 477, 479 (1980) (“[The] requirement that counsel protect the appellate right of an accused extends even to circumstances where the appeal is ‘totally without merit.’ ”). Once it is determined that an appellant was denied his or her constitutional right of direct appeal, the proper course of action is to grant the appellant leave to file a direct appeal nunc pro tunc. Commonwealth v. Hoyman, 385 Pa.Super. 439, 561 A.2d 756 (1989). Because counsel is ineffective per se for failing to protect this right, the appellant is entitled to a direct appeal nunc pro tunc without considering the ability to establish the merit of the issues sought to be raised on direct appeal. Commonwealth v. Hoyman, supra (citing Commonwealth v. Ciotto, 382 Pa.Super. 458, 555 A.2d 930 (1989)).

As stated above, following the denial of post-verdict motions, new counsel for A.P., realizing that the time for appeal from the disposition order had already run, filed a motion for permission to appeal nunc pro tunc. In this motion, he raised trial counsel’s ineffectiveness in failing to file a timely notice of appeal. Without reference to the claim of ineffectiveness, the trial court found that, because fraud or breakdown in the courts was not alleged or proven, it could not enlarge the time in which A.P. could file an appeal. Pa.R.A.P. 903(a) (Purdon 1990). This was error.

While we agree that generally the trial court’s discretion in granting a nunc pro tunc appeal is limited to a finding of fraud or a breakdown in the processes of the court, see Commonwealth v. Englert, 311 Pa.Super. 78, 457 A.2d 121 (1983), because A.P. was denied his constitutional right to appeal his juvenile disposition due to trial counsel’s ineffectivenessi the proper course to be taken is to grant the right to appeal nunc pro tunc. Commonwealth v. Hoyman, supra. A.P. has no other means of redress; a nunc pro tunc appeal is the only means by which a juvenile can challenge the stewardship of his trial counsel because the Post Conviction Relief Act; supra, which would be the remedy for an adult, is not available to a juvenile. See In the Interest of DelSignore, 249 Pa.Super. 149, 375 A.2d 803 (1977); Brandon Smith, supra. If the constitutional right to appellate review is to have any meaning under these circumstances, it must be protected through a nunc pro tunc appeal.

Because we find that A.P. was denied his constitutional right to appeal the disposition order, we reverse the trial court and find that A.P.’s motion for nunc pro tunc appeal should have been granted. “However, it is not necessary for us to remand the case to the trial court. Because the substantive issues appellant seeks to have considered on direct appeal have been briefed and argued by the parties, and, the record is complete, we may consider them at this time in the context of a nunc pro tunc direct appeal.” Commonwealth v. Hoyman 385 Pa.Super. at 444, 561 A.2d at 759. While the Commonwealth here has not briefed the suppression issue, asserting that the appeal raising the issue has been quashed and therefore not before us, we find the Commonwealth’s reasons for ignoring the issue sophistic. Appellant’s brief makes it clear that he sought to raise the issue, whatever the technical propriety of so doing. The Commonwealth knew, or should have known, that if this Court decided the issue of the nunc pro tunc appeal in A.P.’s favor, judicial economy would dictate that this Court address the only substantive issue raised—the'suppression issue—rather than order a remand to allow the- filing of a new appeal with the resultant waste of time and judicial resources. In short, we hold the Commonwealth declined to address the issue at its peril. We therefore turn to A.P.’s second issue involving the suppression of evidence seized from him at the time of his arrest.

Our standard for reviewing the denial of a motion to suppress evidence is well-established:

Our function on review of an order denying a motion to suppress is to determine whether the factual findings of the lower court are supported by the record. In making this determination, we are to consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may reverse if the legal conclusions drawn therefrom are in error.

Commonwealth v. Jackson, 359 Pa.Super. 433, 435, 519 A.2d 427, 429 (1986), citing Commonwealth v. Cavalieri, 336 Pa.Super. 252, 254-55, 485 A.2d 790, 791 (1984).

The trial court found the following facts in reaching its decision to deny Appellant’s motion to suppress:

The Commonwealth presented the testimony of Police Officer James Gallagher who testified that on February 7, 1990 at approximately 4:00 a.m. he was investigating a homicide that had occurred on February 2, 1990 at 1452 Ithan Street. The officer had been given a description of the perpetrator which described a male “approximately five foot eight inches (5'8") [tall], light skinned, possibly hispanic with a full face.” (N.T., February 26, 1990, pgs. 4-5).
When Officer Gallagher arrived at the location he observed the defendant and another male coming down the steps of 1452 Ithan Street. Officer Gallagher stopped the two males and patted them down for his own protection. [2. Officer Gallagher was informed that the perpetrator of the homicide was carrying a gun. (N.T., p. 7).] He took note that the defendant was an hispanic male in a black neighborhood and further observed that he fit the rest of the description. At that point he put handcuffs on the defendant and let the other male go upon finding no weapons. (N.T., pgs. 7-8).
Officer Gallagher subsequently searched the defendant and found sixty-four vials of what he believed to be crack cocaine (N.T., p. 9). Six of those vials were later analyzed and tested positive for the presence of cocaine.

Trial Court Opinion at pp. 2-3. We find that after a review of the transcript from the suppression hearing, the record supports the facts found by the trial court. Because we find that the record supports the factual findings, we must turn to the conclusions of law drawn by the trial court from these facts.

The parties do not dispute that the police made a valid investigatory stop, initially, under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Appellant argues that although the officer had the requisite reasonable suspicion to stop Appellant initially, the officer did not have probable cause to arrest him. We agree. “The established test for determining whether an officer had sufficient probable cause to legally justify a warrantless arrest involves looking at the facts and circumstances confronting the officer at the time of the arrest.” Commonwealth v. Ellis, 354 Pa.Super. 11, 17, 510 A.2d 1253, 1256 (1986).

[w]hen we examine a particular situation to determine if probable cause exists, we consider all the factors and their total effect, and do not concentrate on each individual element.... We also focus on the circumstances as seen through the eyes of the trained officer, and do not view the situation as an average citizen might.... Finally, we must remember that in dealing with questions of probable cause, we are not dealing with certainties. We are dealing with the factual and practical considerations of everyday life on which reasonable and prudent men act. This is not the same “beyond-a-reasonable-doubt” standard which we apply in determining guilt or innocence at trial.

Commonwealth v. Ellis at 17, 510 A.2d at 1256, citing Commonwealth v. Simmons, 295 Pa.Super. 72, 83, 440 A.2d 1228, 1234 (1982), quoting Commonwealth v. Devlin, 221 Pa.Super. 175, 178, 289 A.2d 237, 239 (1972) (emphasis in original).

In Commonwealth v. Ellis, supra, we found that probable cause did exist to arrest the defendant because the police had received a radio broadcast concerning a burglary of an industrial equipment company and the theft of two yellow Chevrolet pickup trucks with the company name printed on the side. The police observed one such truck in a residential driveway approximately fifteen minutes later. Three individuals were in the process of unloading the truck. Upon seeing the police officers they fled, but one was successfully apprehended a short time later. We found that, taken together, the evidence was sufficient to establish probable cause.

Appellant cites Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969) in support of his position that probable cause did not exist to arrest him. Hicks, however, involves the threshold question of whether reasonable suspicion exists to make a Terry stop. In fact, the Supreme Court noted that the parties did not contend there was probable cause to arrest at the inception of the seizure. In agreeing that such a contention was meritless, the court stated:

The Commonwealth does not now contend, nor has it ever contended, that the police officers had probable cause to arrest Hicks at the inception of the seizure. This is understandable. At the time of the seizure, the police were seeking, as the perpetrator of the Lloyds’ attempted burglary, a mustached negro in his thirties, of a certain height and weight, wearing a brown coat. Hicks was not wearing a brown coat, did not have a mustache, and there was nothing in the record to indicate that he was of the approximate height and weight of the individual sought. In short, the only manner in which Hicks fit the description of the individual the police were seeking, as far as the record discloses, is that he was a negro in his thirties. This, in itself, was clearly not sufficient to establish probable cause.

Commonwealth v. Hicks at 158, 253 A.2d at 279-280. The Court also found that the evidence did not support reasonable suspicion to stop the defendant. Appellant offers Hicks to show that the general description to which the defendant did fit would not support even a reasonable suspicion to stop, let alone probable cause to arrest.

Likewise, Appellant cites Commonwealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1970), which also involved the criteria for a Terry stop. Here again, the Supreme Court found that the initial stop was not justified by a reasonable suspicion because:

The policemen had no reason to connect them with the reported shooting, except that they were walking near the area; that one was a negro and the other was a Puerto Rican, who wore clothing of the general color reportedly being worn by those involved. The policemen had no information of the physical make-up or characteristics of the men they were seeking, and hence, did not know if Berrios and his companion were of the same description. If the policemen were constitutionally justified in searching Berrios under these circumstances, then every Puerto Rican wearing light clothing and walking with a negro in this area could likewise be validly searched. This, we cannot accept.

Commonwealth v. Berrios 437 Pa. at 341, 263 A.2d at 344.

Finally, both Appellant and the trial court cite Commonwealth v. Anderson, 360 Pa.Super. 466, 520 A.2d 1184 (1987). In Anderson, we cited several cases in which certain factors were significant in making the determination of whether probable cause existed:

In Commonwealth v. Woodson, [342 Pa.Super. 392, 493 A.2d 78 (1985) ], we held that the defendant’s proximity to the scene of the crime, the correspondence of his appearance to the victim’s detailed description of the intruder, his attempt to evade the police, and his unsubstantiated explanation for his presence in the alley behind the victim’s house, taken together provided the police officer with probable cause to arrest. Id. at 396, 493 A.2d at 80. In Commonwealth v. Williams, 317 Pa.Superior Ct. 456, 465, 464 A.2d 411, 415 (1983), we held that the defendant’s matching of the description given by the victim, his proximity to the scene of the crime both in time and place and his attempt to flee all provided the police with probable cause to arrest. See also Commonwealth v. Derrick, 322 Pa.Superior Ct. 517, 532, 469 A.2d 1111, 1119 (1983) (flight in and of itself is not sufficient to establish probable cause, but flight coupled with some other fact may be sufficient); Commonwealth v. Bridgeman, 310 Pa.Superior Ct. 441, 447, 456 A.2d 1017, 1020 (1983) (officer’s observance of goods in defendant’s car matching description of stolen goods, defendant’s failure to produce owner’s card for the car or a reasonable explanation for its absence constituted probable cause for arrest); Commonwealth v. Ryan, 253 Pa.Superior Ct. 92, 100, 384 A.2d 1243, 1246 (1978) (the defendant’s proximity to the scene of the crime both in time and place, and his fast paced walking away were insufficient to provide probable cause for arrest).

Commonwealth v. Anderson 360 Pa.Super. at 469-471, 520 A.2d at 1186-1187. After citing those cases, we concluded that:

Here, appellant matched the general description provided by the complainant. He did stand over 5'9" tall and wore a blue sweatshirt with a zipper up the front and red stripes down the sleeves. N.T. August 3, 1983 at 32. He was observed standing on a street corner two blocks away from the scene of the crime over two hours after it had occurred. Id. at 33. There is, however, no evidence that appellant was acting suspiciously or that he tried to flee or evade the police. Unlike those cases cited above where we have found facts sufficient to establish probable cause, the only basis for such a determination in this case was appellant’s similarity to the general description provided by the victim. We hold that this similarity, taken by itself, was not enough to provide the police with sufficient facts establishing probable cause to arrest.

Id. at 471, 520 A.2d at 1187.

More recently, we found probable cause to arrest existed for the following seemingly general description:

The arresting officer received a radio broadcast from his partner stating that the partner had just purchased narcotics from a black man in a blue shirt at a particular street corner.

Commonwealth v. Chase, 394 Pa.Super. 168, 172, 575 A.2d 574, 576 (1990) alloc. den., 527 Pa. 608, 590 A.2d 295. But the facts further showed that when the officer arrived at the particular street corner and saw two black men wearing blue shirts, he yelled “police” and one man (the defendant, Chase) fled. The element of flight, combined with the other information the officer possessed, was sufficient to provide the needed probable cause. Our present case does not involve any suspicious behavior by A.P. and is, therefore, distinguishable from Chase, supra.

While we agree that, based on the circumstances known by the police officer at the time he stopped Appellant, there was the required reasonable suspicion to support the Terry stop, we do not find the evidence supports the probable cause to arrest Appellant after the officers patted Appellant down in search of weapons. The evidence discloses that Appellant was immediately handcuffed and searched after the initial pat-down. There is no record evidence that the officer asked any questions of Appellant or had other evidence which would support a finding of probable cause. The officer’s justification for the arrest was that Appellant met the general description of the person under suspicion, and that Appellant was present at the same address where the homicide had occurred five days earlier. We do not find that the presence of an Hispanic male in a predominantly black neighborhood, taken together with the other information known by the police officer, is sufficient to support a finding of probable cause to arrest. We, therefore, reverse the trial court’s denial of the motion to suppress, vacate the disposition order, and remand for further proceedings consistent with this opinion.

Order reversed and remanded. Jurisdiction relinquished.

POPOVICH, J., concurs in the result.

CHULLO, J., files a dissenting opinion.

JOHNSON, J., files a dissenting opinion in which OLSZEWSKI, J., joins.

CHULLO, Judge,

dissenting:

I most respectfully dissent. I would dismiss the appeal of A.P. as moot. The existence of an actual controversy is essential to appellate jurisdiction. Commonwealth v. Smith, 336 Pa.Super. 636, 639, 486 A.2d 445, 447 (1984). If, pending appeal, an event occurs which makes relief impossible, the appeal must be dismissed. Id. at 640, 486 A.2d at 447. The only exceptions to the jurisdictional requirement for an actual controversy are when the question is of great public importance or when one of the parties will continue to suffer a detriment from the trial court’s decision. Id. at 640-41, 486 A.2d at 448.

In this case, the probation period is complete and A.P.’s juvenile disposition for a misdemeanor, possession of a controlled substance, is not a criminal record. See 42 Pa.C.S. § 6354. Juvenile matters are distinguished from adult criminal trials. In re Brandon Smith, 393 Pa.Super. 39, 66, 573 A.2d 1077, 1090 (1990) (Tamilia, J., concurring in part, dissenting in part); see also 42 Pa.C.S. §§ 6336(a)-(d), 6337, 6352-54. The Rules of Criminal Procedure do not apply to juvenile matters. In re Becker, 370 Pa.Super., 487, 536 A.2d 1370 (1988); see also Pa.Rule Crim.P. 1.

Here there is neither an unresolved question of great public importance, nor will A.P. continue to suffer a detriment. I would, therefore, dismiss the appeal as moot. Smith, supra.

JOHNSON, Judge,

dissenting.

In February of 1990, A.P., a juvenile, was subjected to a search following arrest and found to be carrying sixty-four vials of crack cocaine on his person. Following a hearing in the Juvenile Division of the Family Court, the Honorable Sheldon C. Jelin found A.P. guilty of possession of a controlled substance and adjudicated him delinquent. A.P. was sixteen years of age at the time of the adjudicatory and dispositional hearing. He was living in New York with his mother, who attended the hearing in the Philadelphia Court of Common Pleas.

At the conclusion of the adjudicatory stage, the assistant defender representing A.P. requested that A.P. be allowed to go back to the jurisdiction in New York City, to the residence of A.P. and his mother on Farragut Road, East Flatbush, Brooklyn. Judge Jelin, after confirming A.P.’s out-of-state residency, placed him on probation. The disposition hearing was concluded as follows:

THE COURT: All right. At this point I am going to dispose of the case as follows: I am going to place the defendant [sic] on probation. Probation is to be transferred to Brooklyn, New York, through the interstate compact.
And I’m telling this to you, young man: You stay out of Philadelphia. Is that clear to you?
THE DEFENDANT: Yes.
THE COURT: Because if you come to Philadelphia, unless you have some very good reason, I will assume that you’re here with respect to getting involved in drugs and I’m going to take you off the street and put you in a Juvenile facility. Is that clear to you?
THE DEFENDANT: Yes.
THE COURT: How soon are you going to leave for New York?
THE DEFENDANT’S MOTHER: As soon as you release him to me, your Honor, I’ll take him right out of here.
THE COURT: Okay.
(Whereupon, the hearing was concluded.)

Adjudicatory/Dispositional Hearing Transcript, February 26, 1990, pp. 42^3.

On March 7, 1990, Judge Jelin received a Motion to Reconsider Verdict. He entered a rule to show cause and scheduled a hearing for March 22, 1990, for consideration of the motion. On the date scheduled for a hearing on the motion, the matter was continued due to the unavailability of counsel. Defense counsel did not attempt to appeal from the disposition order of February 26, 1990, within the allowable thirty day period. The motion for reconsideration was heard and denied on-April 16, 1990.

New defense counsel, from the Appeals Division of the same Defender Association that has represented A.P. throughout this matter, filed a Petition for Judicial Permission to File an Appeal Within Thirty Days on May 4, 1990, which was denied following a hearing, on May 9, 1990. The Defender Association filed two separate notices of appeal. The first notice of appeal, filed May 11, 1990, was purportedly from the order of April 16, 1990, which denied the Motion to Reconsider the Verdict. This appeal was docketed at No. 1370 Philadelphia 1990 in this Court.

The second notice of appeal, docketed in this Court at No. 1413 Philadelphia 1990 and filed May 17, 1990, in the Philadelphia Court of Common Pleas, is brought from the order of May 9, 1990 denying the Petition for Judicial Permission to File an Appeal Within Thirty Days.

Relying on Commonwealth v. Hoyman, 385 Pa.Super. 439, 561 A.2d 756 (1989), the Majority on this appeal would find that A.P. has been denied his “constitutional right to appeal” and that the Petition for Judicial Permission to File an Appeal Within Thirty Days should have been granted. The Majority then turns to address the substantive suppression issue. My colleagues find themselves unable to find probable cause to support AP.’s arrest and, accordingly, reverse the denial of the pre-hearing suppression motion, vacate the disposition order, and remand for further proceedings. I am unable to agree with any of these conclusions and must, therefore, respectfully dissent.

I would first address the ability of this Court to consider the substantive issue. The disposition order, entered February 26, 1990, was a final order from which any direct appeal would have to be taken. Counsel for A.P. concedes as much. The notice of appeal from the order denying the motion to reconsider the verdict was filed May 11, 1990 at No. 1370 Philadelphia 1990. The grant of a rule to show cause on March 7, 1990, was not a grant of reconsideration and, therefore, did not operate to prevent the thirty-day appeal period from expiring. Valentine v. Wroten, 397 Pa.Super. 526, 528, 580 A.2d 757, 758 (1990) appeal denied 527 Pa. 650, 593 A.2d 422 (1991); Luckenbaugh v. Shearer, 362 Pa.Super. 9, 13, 523 A.2d 399, 401 (1987). On January 31, 1991, this Court entered an Order at that docket number, setting forth in its entirety:

ORDER

The appeal docketed at No. 1370 Philadelphia 1990 is taken from the denial of post-verdict motions filed after sentencing in juvenile proceedings. The court hereby quashes No. 1370 Philadelphia 1990 as filed more than 30 days after the entry of judgment of sentence. See Pa. R.A.P. 903; Commonwealth v. McCleary, 333 Pa.Super. 443, 482 A.2d 651 (1984) (fact that defendant filed motion for a reconsideration did not extend 30-day period within which he was required to take appeal from his judgment of sentence). The petition for consolidation is denied as moot.

In its brief, the Commonwealth properly argues that there is no issue before this Court, on this appeal, other than A.P.’s claim that the trial court wrongly denied his request for a nunc pro tunc appeal. Brief for Appellee on En Banc Reargument, p. 15. It correctly points out that the appeal at No. 1370 remains quashed as untimely and not subject to review. My colleagues in the Majority do not challenge that the appeal from the juvenile court disposition has been quashed as untimely. The Majority misstates the record in declaring that “the substantive issues appellant seeks to have considered on direct appeal have been briefed and argued by the parties.” Opinion by Hudock, J., pp. 146-149. To the contrary, the Commonwealth expressly states, I believe most appropriately:

5Should this Court request the Commonwealth to do so, it will, of course, file a brief addressing the substantive and procedural issues that the quashed appeal at No. 1370 raised. Unless this Court so acts, it would truly be illogical and unfair for it to grant relief on an issue raised exclusively in another appeal that the Commonwealth has never had a proper opportunity to contest. See Commonwealth v. Hart, 479 Pa. 84, 387 A.2d 845 (1978).

Brief for Appellee on En Banc Reargument, p. 16 n. 5.

I am unaware of any authority which would permit this Court to entertain and decide an issue which had been the principal subject of another, separate direct appeal under circumstances where that separate appeal had been quashed as untimely. The Majority has not responded to the well-reasoned argument set forth by the Commonwealth in declining to argue an issue contained in a separate appeal that has already been quashed. I do not find the Commonwealth’s reasons for not briefing the issue “sophistic.” Nor can I join my esteemed colleagues’ conclusion that the Commonwealth “knew, or should have known, that ... judicial economy would dictate that this Court address the only substantive issue raised—the suppression issue.” Majority p. 148. One might wonder whether counsel for A.P. “knew or should have known”, when filing his Motion for Consolidation of the two appeals on August 13, 1990, that this Court would—after quashing the appeal at No. 1370—reach out and decide the substantive issue in the quashed appeal, based upon theories of “judicial economy.” Were the Majority to direct me to some, or any, authority for such a proposition, I would be eager to reconsider.

Our Court has recently adopted an amendment to our Internal Operating Procedures whereby we have declared that an order denying a motion to quash “shall be deemed to be the law of the case.” I.O.P. 302.H, adopted April 29, 1992. I should think that, a fortiori, an order which grants a motion to quash would be deemed to be the law of the case. It would appear “unseemly” to this writer for this Court to reverse or overrule a prior order of this Court, in reliance upon which the Commonwealth has abstained from arguing the appeal on the merits. Compare I.O.P. 302.H, Comment.

Based upon all of the above, I can only conclude that this Court may not properly entertain the substantive suppression issue on the record before us.

I now turn to the issue of whether the trial court erred in denying A.P.’s Petition for Judicial Permission to File an Appeal Within Thirty Days. I find no error. First, let us examine the argument underlying the decision of my colleagues to grant the appeal. On six separate occasions, the Majority refers to A.P.’s “constitutional right to appeal [appellate review]”, pp. 144-145, 146-147 (2), and 147-149 (3). Reference is made to Article V, Section 9 of the Pennsylvania Constitution, which guarantees a right of appeal in all cases to a court of record. However, I do not understand my colleagues to be arguing that the Pennsylvania Constitution has been violated. Rather, the argument seems to be that “counsel’s failure to properly effectuate an appellant’s constitutional right of appeal, unless expressly waived by an appellant, is ineffective [assistance of counsel] per se.” p. 147. The Majority cites to Commonwealth v. Wilkerson, 490 Pa. 296, 299, 416 A.2d 477, 479 (1980) in support of its contention. I find Wilkerson inapposite.

In Wilkerson, our Supreme Court considered the denial of a P.C.H.A. petition, filed pro se, alleging ineffectiveness of counsel. The defendant, Wilkerson, alleged that he “wanted. an appeal and that he took steps to perfect an appeal on his own.” Wilkerson, supra at 300, 416 A.2d at 479. The Supreme Court stated:

Clearly, if, as alleged, Wilkerson wished to appeal and counsel merely failed to file an appeal and an Anders brief, if appropriate, Wilkerson did not effectively waive his right and counsel would have to be deemed ineffective. Accordingly, the facts alleged, if proven, would warrant relief and the court should have granted a hearing and given Wilkerson an opportunity to prove he advised counsel of a desire to appeal.

Id. (emphasis added). The Court went on to observe:

[N]othing is present in this record to contradict Wilkerson’s claim that by correspondence he requested an appeal or his claim, made in his pro se petition, that he was misled into believing that, if he successfully prosecuted an appeal and was granted a new trial, he could then be convicted of murder of the first degree.

Id. at 302, 416 A.2d at 480. (emphasis added).

The Wilkerson case does not stand for per se ineffectiveness merely upon a showing of a lack of express waiver, as the Majority seems to suggest. The Wilkerson case stands for the proposition that (1) an accused has an absolute right to appeal, and (2) where the accused has declared a desire to take an appeal, that (3) counsel can be faulted for allowing that right to be waived unless the accused himself effectively waives that right. In vacating the order denying P.C.H.A. relief and remanding for a hearing in Wilkerson, our Supreme Court focused on what the accused, himself, had alleged, including the accused’s allegations that counsel had misled him and, most importantly, that the accused, himself, desired to take an appeal. The matter was remanded for a hearing at which Wilkerson would have an opportunity to prove his claims. None of that is present in the appeal now before us.

The hearing before Judge Jelin on February 26, 1990, concluded with A.P.’s mother assuring the court that she would remove A.P. from the court and from this Commonwealth, just as soon as the court released A.P. to his mother. Adjudicatory/Dispositional Hearing Transcript, supra at p. 42, set forth above. This Court should conclude, based upon the complete record before us, that A.P. exited Pennsylvania on February 26, 1990, returned to Flatbush, and has not been back in Pennsylvania with respect to this juvenile case since February 1990.

A.P. has been represented post-trial in the Family Court and is represented on this appeal by extremely competent counsel. The Petition for Judicial Permission to File an Appeal Within Thirty Days, filed May 4,1990, does not contain any allegation that A.P. desired to take an appeal, as required by Wilkerson, supra. Rather than alleging anything at all concerning the desires or wishes of A.P., the Petition merely sets forth, in its only pertinent part:

5. Although it was trial counsel’s intention to preserve the issues for appeal and to perfect that appeal, by the failure to have filed an appeal within 30 days of February 26, 1990 or to have the disposition vacated within that time period, counsel may have waived the right to appeal. This is a plain example of ineffectiveness.
WHEREFORE, A[.] P[.], through counsel, requests that this Honorable Court grant him 30 days in which to perfect an appeal.

Respectfully submitted

[Defender Association of Philadelphia]

Petition for Judicial Permission, etc., filed May 4, 1990, unnumbered p. 2, (emphasis added). I am not prepared to charge the omission of reference to A.P.’s desires to inadvertence. Wilkerson requires some evidence, in the record, that the accused desired to appeal before an analysis as to whether the constitutional right to appeal can be instituted. Wilkerson, swpra at 10, 416 A.2d at 480-81. This Court need not even speculate that A.P. has bid “good riddance” to this Commonwealth and has no present concern about an appeal, where he has been released on probation and there is nothing in the certified record to even suggest that that probation was effectuated. It is enough that the record is devoid of any indication, even by way of hearsay, that A.P. has had any interest or concern -with these proceedings since February 26, 1990. The Petition for Judicial Permission to File an Appeal Within Thirty Days contains no allegation that A.P. desires to perfect an appeal. Without a desire on the part of the accused to take an appeal, there can be no violation of the constitutional right to appellate review.

To the same effect is Commonwealth v. Hoyman, 385 Pa.Super. 439, 561 A.2d 756 (1989) upon which the Majority so heavily relies. There, our eminent colleague, the Honorable James E. Rowley, stated, in pertinent part:

We hold that failure of trial counsel to take a direct appeal, when his client so requests, is a demonstrated miscarriage of justice within the meaning of [Commonwealth v.] Lawson [519 Pa. 504, 549 A.2d 107 (1988)]. Here, Mr. Hoyman having established that an important state constitutional right has been denied him is entitled to have that right reinstated and to proceed with a direct appeal. In the case at bar, appellant told the Assistant Public Defender who had represented him at trial that he wanted to take a direct appeal, and it was determined at the PCRA hearing that she knew of appellant’s request that a direct appeal was to be filed on his behalf. Through no fault of his own a direct appeal was not filed. Because a miscarriage of justice has occurred in the case at bar, appellant is entitled to the relief he seeks in this PCRA proceeding, i.e., a direct appeal.

Hoyman, supra 385 Pa.Super. at 444, 445, 561 A.2d at 758, 759. (Underlining added; bolding in original).

Neither Wilkerson nor Hoyman support the Majority’s assertion that A.P. has been deprived of the constitutional right to an appeal. The manner by which the Majority would resolve this appeal points up, I submit, the difficulties which remain unresolved following this Court’s many opinions filed in In the Matter of Brandon Smith, 393 Pa.Super. 39, 573 A.2d 1077 (1990) (en banc). In that case, at least five of the judges, and arguably six members of this Court, concluded that post-trial motions are inappropriate following an adjudication of delinquency. See and compare, Opinion, Beck, J., concurring and dissenting, 393 Pa.Super. at 54, 56, 573 A.2d at 1084, 1084-86; Opinion, Tamilia, J., concurring and dissenting, 393 Pa.Super. at 58, 61, 573 A.2d at 1086-89; Opinion, Johnson, J., concurring and dissenting, 393 Pa.Super. at 70, 76, 573 A.2d at 1092, 1095.

I am also left uncomfortable by the Majority’s refusal to go through a traditional three-prong analysis for ineffectiveness, presumably on its finding that somehow, the Defender Association of Philadelphia is, solely on its self-serving assertion contained in its Petition ... to File an Appeal, etc., ineffective per se. See Commonwealth v. Durst, 522 Pa. 2, 3, 559 A.2d 504, 505 (1989). The second prong of the traditional three-prong analysis considers whether the particular course chosen by counsel had any reasonable basis designed to effectuate the client’s interests. Id.

In In Re Hutchinson, 500 Pa. 152, 454 A.2d 1008 (1982), our Supreme Court was required to balance the competing interests of the Commonwealth and of the individual in a civil commitment context. The Court chose to apply an ineffectiveness standard, in reviewing the failure of respondent’s counsel to object to certain hearsay testimony, even though the involuntary commitment of an individual based solely on the hearsay testimony of a single witness would be constitutionally prohibited without regard to counsel’s conduct. In re Hutchinson, 500 Pa. at 159 n. 8, 454 A.2d at 1011-1012 n. 8; Commonwealth ex rel. Finken v. Roop, 234 Pa.Super, 155, 173-74, 339 A.2d 764, 773-74 (1975). In Hutchinson, Mr. Justice (now Chief Justice) Nix recognized the clear difference between a criminal case and the involuntary civil commitment proceeding which the Supreme Court faced in that appeal. There, in considering the difficulties which arise when one seeks to overlay a criminal process standard on a civil proceeding, Mr. Justice Nix observed that the “best interest of the client in [civil commitment mental health] cases is not necessarily served by striving to seek the client’s release.” In re Hutchinson, 500 Pa. at 159, 454 A.2d at 1012.

In In the Matter of Brandon Smith, supra, this writer questioned whether the release and discharge of a juvenile would be in his best interest, especially if counsel knew or reasonably could have known that the juvenile had discharged a weapon which wounded a party seeking to intervene in a neighborhood disturbance, and the juvenile would benefit from residency at Glen Mills School. Id. at 75, 573 A.2d at 1094-95. I concluded that the strict application of the ineffectiveness standard as brought over from criminal proceedings into juvenile court proceedings was contrary to the whole concept of juvenile courts which were created in an attempt to depart from the traditional treatment of children as ordinary criminal defendants.

I would pose the same question to my colleagues here. A.P. was apprehended carrying sixty-four vials of crack cocaine, a quantity sufficient to give rise to an inference that it was possessed with an intention to deliver. A.P. secured a disposition by which he was permitted to depart from Pennsylvania, albeit on probation, without any further penalty. Is it really in A.P.’s best interest, as a sixteen-year old youth, to now have his adjudication of delinquency reversed and the case remanded for further proceedings? What message does this send to A.P. and other youths contemplating involvement in heavy drug trafficking?

The Defender Association of Philadelphia asserts that the issue on this appeal is whether Judge Jelin erred in refusing to grant the Association leave to file an appeal nunc pro tunc where the failure to timely file notice of appeal was due to the Association’s alleged ineffective assistance of counsel. The only possible evidence of ineffectiveness is Paragraph 5 contained in the Petition, the bulk of which is quoted above at page 9. The paragraph concludes with the self-serving statement of the Association: “This is a plain example of ineffectiveness.”

I agree with the Commonwealth that under the present facts, this Court had no jurisdiction over the appeal from the adjudication. Here, defense counsel neglected to ask the trial court to vacate the disposition order pending disposition of motions, and thus, failed to perfect an appeal within thirty days. As I have attempted to point out above, the appeal from the denial of the Motion to Reconsider the Verdict was properly quashed and should not, and could not, be before us. The appeal from the denial of the Petition.... to File an Appeal Within Thirty Days should be reviewed on straight grounds of abuse of discretion. When this is done, it is clear that Judge Jelin properly applied existing law and did not abuse his discretion.

Judge Jelin correctly recognized that time limitations for filing notices of appeal cannot be extended as a matter of indulgence. Trial courts do not have jurisdiction or power to extend or obviate time in which an appeal may be lodged in appellate courts. Reading Anthracite Company v. Rich, 525 Pa. 118, 577 A.2d 881 (1990); Jones v. Unguriet, 364 Pa. 200, 71 A.2d 240 (1950). Except to relieve fraud or its equivalent, the thirty day time limitation set forth in Pa.R.A.P. 903(a) may not be extended. Dixon Estate, 443 Pa. 303, 279 A.2d 39 (1971). Some breakdown in the court’s operation may justify an extension. West Penn Power Company v. Goddard, 460 Pa. 551, 333 A.2d 909 (1975); Appeal of Girolamo, 49 Pa. Cmwlth. 159, 410 A.2d 940 (1980). The Defender Association has not alleged any such excuse(s) on this appeal. Mere negligence of counsel is not a ground for obtaining a nunc pro tunc appeal. Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979); In Re Glosser Brothers, Inc., 382 Pa.Super. 177, 555 A.2d 129, 145-46 (1989).

Our standard of review in evaluating an order refusing to grant permission to appeal nunc pro tunc must surely be whether the trial court abused its discretion or committed an error of law. Judge Jelin, in the case now before us, set forth his reasoning, in his Opinion filed August 2, 1990, for denying the Petition as follows:

In the instant case the adjudication and disposition occurred on February 26, 1990. The Notice of Appeal was filed on May 11, 1990, a full 74 days after the order from which the appeal was taken. Clearly the defendant has exceeded the statutory limitations. Although Post-Verdict Motions were filed and ruled upon they did not toll the statutory limitations because the original order was never stayed or vacated. Technically the application for reconsideration of the verdict should have been filed, thereby, preserving the defendant’s right of appeal if the petition for reconsideration was denied.
Notwithstanding the above, the defendant did not file an appeal within thirty days of the entry of the order adjudicating the defendant delinquent and placing him on probation. Defendant’s Post-Verdict Motions, which did not toll the appeal period, were denied by this Court. There is no valid reason why Defendant’s Petition for Judicial Permission to File an Appeal within 30 days should have been granted.

For all the above reasons the Petition for Judicial Permission to File an Appeal Within 30 Days was properly denied. Opinion, Jelin, J., August 2, 1990, p. 3 (citation omitted).

I find no error of law or abuse of discretion in the action of the trial court. I would accordingly affirm the order denying permission to appeal nunc pro tunc. Since the order arising from the disposition order has already been quashed by this Court, I would refuse to consider the suppression issue sought to be introduced by the Defender Association. If the suppression issue were to be examined, I would concur in the Majority’s finding that the record supports the factual findings of Judge Jelin. Based upon my independent review of the record and the law, I would find no error in Judge Jelin’s conclusion that the arrest and search were reasonable.

I find no basis for disturbing the disposition order of February 26, 1990. Hence this dissent.

OLSZEWSKI, J., joins in this dissenting opinion by JOHNSON, J.

      . 42 Pa.C.S. §§ 9541-9546 (Purdon Supp.1992).

      . The trial court stated in its opinion that the use of post-trial motions was recently approved by this Court in In The Matter of Brandon Smith, 393 Pa.Super. 39, 43, 573 A.2d 1077, 1079 (1990) (en banc). We note, however, that on this issue the vote was 6 to 3 against implementing a post-trial motions procedure in juvenile proceedings. We express no opinion on the propriety of the use of post-trial motions in the present case, as the issue is not before us.

      . New counsel, also with the same public defender's office, filed this motion. Although we recognize the general rule that counsel may not argue the ineffectiveness of other counsel within the same public defender’s office, Commonwealth v. Fetzner, 372 Pa.Super. 469, 539 A.2d 890 (1988), alloc. den., 520 Pa. 602, 553 A.2d 965, we also recognize the exception for reversible error which is apparent from the record. Fetzner, supra.

      . The post-trial motion appeal at No. 1370 Philadelphia 1990 was quashed as untimely on January 31, 1991, having been filed more than thirty (30) days after the dispositional order placing A.P. on probation.

      . § 6337. Right to counsel
      Except as otherwise provided under this chapter a party is entitled to representation by legal counsel at all stages of any proceeding under this chapter [The Juvenile Act] and if he is without financial resources or otherwise unable to employ counsel, to have the court provide counsel for him. If a party appears without counsel the court shall ascertain whether he knows of his right thereto and to be provided with counsel by the court if applicable. The court may continue the proceeding to enable a party to obtain counsel. Counsel must be provided for a child unless his parent, guardian, or custodian is present in court and affirmatively waive it. However, the parent, guardian, or custodian may not waive counsel for a child when their interest may be in conflict with the interest or interests of the child. If the interests of two or more parties may conflict, separate counsel shall be provided for each of them.

      . There is no indication in the present record that A.P. did not desire to appeal the disposition order.

       The record can be read as indicating Wilkerson waived his right to file post-verdict motions, but his claim that he was advised he could be convicted of murder of the first degree could serve to show any such waiver was not effective. But, in any event, an appeal could have raised the validity of the sentence despite the failure to file post-verdict motions if as alleged he asked counsel to file an appeal.


source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    617 A.2d 778
    COMMONWEALTH of Pennsylvania v. Robert Blaine BLYSTONE, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted June 29, 1992.
    Filed Nov. 19, 1992.

      Robert R. Ferguson, Public Defender, Lewistown, for appellant.
    Timothy S. Searer, Asst. Dist. Atty., Lewistown, for Com., appellee.
    Before CIRILLO, KELLY and CERCONE, JJ.
   CIRILLO, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Mifflin County. A motion to withdraw counsel is also before this court. We affirm the judgment of sentence, and deny the motion to withdraw counsel.

A jury convicted appellant Robert Blaine Blystone, Jr. of arson endangering persons and arson endangering property in violation of 18 Pa.C.S. §§ 3301(a)(l)(i) and 3301(c)(1). Following the denial of his post-trial motions, Blystone was sentenced to serve a term of imprisonment of not less than five years nor more than twenty years, and to pay a $500.00 fine. After the trial court denied his motion for reconsideration of sentence, Blystone filed a timely notice of appeal.

On February 14, 1990, at approximately 2:15 a.m., Blystone awakened the owners of a farm in Mifflin County to alert them that their milkhouse was on fire. The owners immediately telephoned the fire department while Blystone remained on the farm to assist in fighting the fire. Over the next several hours firefighters, police officers, and various others congregated on the premises. Some of these individuals were later called to testify against Blystone at his trial.

Blystone testified at trial that he was working at Domino’s Pizza until 2:00 a.m., and therefore could not have had enough time to set the milkhouse on fire. Blystone’s version of events was contradicted, however, by the Derry Township police captain who testified that while stationed along the main highway he observed a car drive by with a Domino’s pizza sign on its roof. The captain later identified the car as belonging to Blystone. According to the captain’s testimony, he observed this car in the vicinity of the fire scene approximately forty-five minutes before the owners of the farm summoned the fire department.

On appeal Blystone raises two issues for our review:

1. Did the Commonwealth meet its burden of proof beyond
a reasonable doubt at trial?
2. Did Appellant present sufficient evidence of alibi defense to create a reasonable doubt?

Initially, Blystone contends that the Commonwealth failed to prove beyond a reasonable doubt that he started the fire at the milkhouse and, therefore, his conviction is based solely on speculation. This argument lacks merit. In order to determine whether the evidence was sufficient to support a conviction, we must view the entire record in the light most favorable to the Commonwealth, as verdict winner, and drawing all reasonable inferences therefrom we must then establish if there is sufficient evidence to enable the trier of fact to find every element of the crime charged beyond a reasonable doubt. Commonwealth v. Edwards, 521 Pa. 134, 143, 555 A.2d 818, 823 (1989). This standard applies equally whether the evidence of guilt is direct, or circumstantial, as here, so long as the combination of the evidence links the defendant to the crime beyond a reasonable doubt. Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990).

In reviewing a criminal conviction, we will not weigh the evidence and substitute our judgment for that of the factfinder, Commonwealth v. Pronkoskie, 498 Pa. 245, 251, 445 A.2d 1203, 1206 (1982), for it is within the sole purview of the factfinder to determine the credibility of the witnesses and the weight to be accorded the testimony of each. Commonwealth v. Shaver, 501 Pa. 167, 173, 460 A.2d 742, 745 (1983). Although a defendant’s guilt may be established through wholly circumstantial evidence, 498 Pa. at 248, 445 A.2d at 1205; Commonwealth v. Cimaszewski, 447 Pa. 141, 144, 288 A.2d 805, 806 (1972), it cannot be based on mere surmise, conjecture or speculation. Commonwealth v. Scott, 409 Pa.Super. 313, 314, 597 A.2d 1220, 1221 (1991).

To convict Blystone of arson endangering persons, the Commonwealth must prove that Blystone intentionally started the fire or caused the explosion and thereby recklessly placed another person in danger of death or bodily injury, including but not limited to a firefighter, police officer or other person actively engaged in fighting the . fire. 18 Pa.C.S. § 3301(a)(1)®. To convict Blystone of arson endangering property, the Commonwealth must' establish that Blystone intentionally started the fire with the intent to destroy or damage the milkhouse. 18 Pa.C.S. § 3301(c)(1). We find that the record contains sufficient circumstantial evidence from which the jury could conclude that Blystone caused the explosion with the intention of damaging the milkhouse. Cimaszewski, supra; Scott, supra.

In his second issue, Blystone asserts that the testimony of certain alibi witnesses was sufficient to create a reasonable doubt that he did not set fire to the milkhouse. This argument is also without merit. “Alibi is a defense that places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party.” Commonwealth v. Gainer, 397 Pa.Super. 348, 353, 580 A.2d 333, 336 (1990). Here, several defense witnesses testified that on February 14, 1990, Blystone was at work until 2:00 in the morning. Based on this testimony, Blystone argues that he did not have sufficient time to drive to the farm and set the milkhouse on fire before 2:15 a.m. when the owners of the farm telephoned the fire department.

It is well established that absent an abuse of discretion we will not disturb a trial court’s findings of fact if they are supported by the record. Commonwealth v. McLean, 396 Pa.Super. 23, 27, 578 A.2d 4, 6 (1990). Determination of the credibility of alibi witnesses is within the sole purview of the jury, Shaver, supra, and the jury is free to believe all, part or none of the evidence. Id. In this case, the jury chose not to believe Blystone’s witnesses. We will not now weigh the evidence and substitute our judgment for that of the jury. Pronkoskie, supra. There is adequate evidence in the record to support the jury’s determination that the combination of direct and circumstantial evidence linked Blystone to the arson beyond a reasonable doubt. Hardcastle, supra. Viewing the evidence in the light most favorable to the Commonwealth, as verdict winner, and drawing all reasonable inferences therefrom, we conclude that there is sufficient competent evidence in the record to support the jury’s verdict. Edwards, supra. We, therefore, affirm the judgment of sentence.

Although we have disposed of the merits of this case, we must now address a procedural issue. In addition to appointed counsel’s brief addressing the issues presented on direct appeal, Blystone also filed a pro se motion to withdraw counsel, and a supporting brief, alleging that his attorney was ineffective. This panel is therefore faced with a “hybrid” form of representation. A similar situation arose in Commonwealth v. Ellis, 398 Pa.Super. 538, 581 A.2d 595 (1990) (en banc), allocatur granted, 528 Pa. 636, 598 A.2d 992 (1991), when appointed counsel filed a brief raising seven issues for review and the appellant filed a pro se brief raising four additional issues. Confronted with this “hybrid” form of representation, the court was unsure of precisely which issues to address. In the past this court had refused to consider the separate briefs of counsel and appellant; rather, this court would remand the case to the trial court for a hearing to enable the appellant to decide whether he wished to represent himself on appeal or be represented by counsel. Ellis, 398 Pa.Super. at 545, 581 A.2d at 598.

In Ellis, this court, sitting en banc, established a new procedure for handling cases in which both the appellant and his appointed attorney file briefs.

We will accept for filing pro se appellate briefs, but we will not review a pro se brief if a counseled brief has been filed, either before, simultaneously with, or after the pro se, due to the judicial confusion and delay that ensues. Because we refuse to play a timing game or that of a mind reader, trying to determine what the pro se really wants, we see no difference as to when the pro se brief is filed in relation to the counseled brief. If a pro se brief is filed in a counseled appeal, we direct the prothonotary to send the pro se brief on to counsel who is best able to determine in her professional judgment which of the pro se’s issues should be presented for our review. Counsel may argue such pertinent issues in her brief to the court, or if the appellate brief has been filed, she may file a supplemental brief addressing those same issues. If the pro se brief alleges ineffectiveness of appellate counsel or an affirmative desire to be heard pro se, we direct counsel to petition this court to remand the case to the trial court so that it may conduct a full hearing in order to determine appellant’s knowing and intelligent waiver of his right to appellate counsel, and of his desire to proceed pro se, or in the case of ineffectiveness, an appointment of new appellate counsel.

Ellis, 398 Pa.Super. at 550, 581 A.2d at 600-601; see also Commonwealth v. Ferri, 410 Pa.Super. 67, 599 A.2d 208 (1991) (this court is precluded from considering a pro se brief where a separate brief has been filed by counsel). Cf. Commonwealth v. Patton, 409 Pa.Super. 304, 597 A.2d 1216 (1991) (court disregarded pro se supplemental brief to counseled appeal where appellant neither raised allegations of ineffectiveness of counsel nor exhibited a desire to proceed pro se).

Shortly after Ellis, a panel of this court considered a similar procedural situation. In Commonwealth v. Lawrence, 408 Pa.Super. 9, 596 A.2d 165 (1991), the appellant had filed a pro se brief alleging, inter alia, ineffective assistance of counsel. The prothonotary forwarded the pro se brief to appellate counsel for review, and thereafter appellate counsel filed a petition with this court to remand for the appointment of a new attorney, as required under Ellis. This court denied counsel’s petition to remand, stating that a remand for appointment of new counsel was neither necessary nor desirable in every case in which the appellant argues ineffectiveness of counsel.

Relying on Ellis, the panel held that in cases where an appellant files a pro se amendment to his counseled appeal, in which he alleges ineffectiveness of counsel, the prothonotary must forward the pro se brief to counsel for review. Upon review of the pro se allegations of ineffectiveness, counsel should petition this court for remand, providing this court with an evaluation of the defendant’s claims of ineffectiveness. Thereafter, upon a review of counsel’s petition for remand, this court will decide whether a remand is in fact warranted. In doing so we will not review the appellant’s pro se allegations of ineffective assistance of counsel; rather, we will review counsel’s analysis of the issues presented, much as we do when faced with an Anders brief or Finley letter.

To do otherwise, the Lawrence panel concluded, would require this court to automatically remand for the appointment of new counsel in all cases where the appellant files a pro se petition alleging ineffectiveness of counsel. This would only “create administrative burdens and judicial delays similar to those [the court] painstakingly sought to alleviate in Ellis, and clearly would undermine the very holding of that case.” Lawrence, 408 Pa.Super. at 14, 596 A.2d at 168.

Here, Blystone’s unique procedural approach to appellate relief presents a novel issue. Blystone’s pro se motion to withdraw counsel and supporting brief were docketed by the Prothonotary of the Superior Court on May 26, 1992. However, to date, Blystone’s counsel has failed to petition this court to remand for a determination of his ineffectiveness, as mandated by Ellis. Although generally we will only review counsel’s petition for remand addressing the defendant’s pro se allegations, here we do not have the benefit of counsel’s legal analysis. Nevertheless, as we are able to discern from the record whether counsel was indeed ineffective, in the interest of justice, we will now consider the issues Blystone raises in his motion and supporting brief. See Commonwealth v. Powell, 527 Pa. 288, 590 A.2d 1240 (1991) (the use of the rationale “in the interest of justice” to correct errors which would otherwise result in unfairness is deeply rooted in the common law of Pennsylvania). Instantly, while we will proceed to review Blystone’s pro se allegations of ineffectiveness, we direct the Prothonotary’s attention to Ellis, and remind counsel and appellants alike that henceforth, all pro se amendments to counseled appeals must follow the procedures outlined in Ellis.

In addition to his motion to withdraw counsel, Blystone also “filed” a pro se document which he entitled “Writ of Mandamus” by sending it to the trial judge’s chambers; the judge’s chambers date-stamped the document on July 18, 1991. See Pa.R.C.P. 1091 et seq. The “Writ” was entered on the trial court’s docket on December 12, 1991. However, no order resolving the “Writ” appears in the record.

Mandamus is an extraordinary remedy which is to be used only sparingly. It is designed to compel the official performance of a ministerial act or a mandatory duty where there exists a clear right in the plaintiff, a corresponding duty in the defendant and want of any other adequate remedy at law. County of Allegheny v. Commonwealth, 507 Pa. 360, 362-363, 490 A.2d 402, 408 (1985). In his document entitled “Writ of Mandamus,” Blystone first contends there was insufficient evidence to convict him of arson and then sets forth several allegations of ineffectiveness of counsel. At the time Blystone “filed” the document in the trial court’s chambers, he had an alternate remedy at law; he had properly filed his notice of appeal to this court several months earlier. Therefore, the extraordinary remedy of mandamus is clearly not available to Blystone under the circumstances of this case. The trial court was correct in not addressing Blystone’s “Writ”.

The document Blystone filed was not. only incorrectly captioned as a ‘Writ of Mandamus” but also sought a remedy to which he is not entitled. However, as Blystone is proceeding pro se, in the interest of efficient judicial administration, we will treat his document as an amendment to his motion to withdraw counsel and will address his issues on that basis. “We do not hold pro se complainants to the stringent standards expected of pleadings drafted by lawyers, and will examine the substance of their complaint to determine if plaintiffs would be entitled to relief if they proved the facts averred.” Madden v. Jeffes, 85 Pa.Cmwlth. 414, 418, 482 A.2d 1162, 1165 (1984).

Blystone argues that his appointed counsel was ineffective for failing to call alibi witnesses and witnesses “critical to defense,” failing to object to certain jury instructions, failing to object to prejudicial and irrelevant testimony, failing to object to remarks made by the prosecutor at trial, failing to investigate the relevant circumstances of the case and for improperly advising him to waive his preliminary hearing. Blystone also claims that his attorney did not act promptly to protect him, failed to keep him informed of developments in the case, neglected to file pre-trial motions and generally “acted ineffectively in representation in all aspects of law.” We disagree with all of these contentions.

When evaluating a claim of ineffectiveness of counsel, we must first determine whether the issue underlying the claim has arguable merit. Commonwealth v. Johnson, 527 Pa. 118, 122, 588 A.2d 1303, 1305 (1991) (citation omitted). If the claim lacks merit, our inquiry ceases. Commonwealth v. Nelson, 514 Pa. 262, 274, 523 A.2d 728, 735 (1987). However, if the claim has merit, we must establish whether the attorney’s course of action had a reasonable basis to further his client’s interests. Commonwealth v. Copenhefer, 526 Pa. 555, 587 A.2d 1353 (1991). Finally, the appellant must demonstrate how his attorney’s error prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 159, 527 A.2d 973, 975 (1987). “In making assertions of ineffectiveness, we also require that an offer of proof be made alleging sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective.” Commonwealth v. Durst, 522 Pa. 2, 5, 559 A.2d 504, 505 (1989). This is because counsel will not be found to be ineffective in a vacuum, and we will not consider claims of ineffectiveness without some showing of a factual predicate. Commonwealth v. Hutchinson, 521 Pa. 482, 486, 556 A.2d 370, 371 (1989).

To establish that counsel was ineffective for failing to call witnesses, the appellant must demonstrate: (1) the identity of the witnesses; (2) that counsel knew of the existence of the witnesses; (3) the material evidence that the witnesses would have provided; and (4) the manner in which the witnesses would have been helpful to appellant’s case. Commonwealth v. Polk, 347 Pa.Super. 265, 273, 500 A.2d 825, 829 (1985); see also Commonwealth v. Broadwater, 330 Pa.Super. 234, 246, 479 A.2d 526, 533 (1984) (in seeking to establish that counsel should have called a particular witness, defendant must show that the missing testimony would have been helpful to his defense).

Here, Blystone fails to give either the names or the addresses of any of the witnesses he contends his attorney should have called to testify on his behalf at trial. Moreover, Blystone fails to establish that his attorney was even aware of the existence of these witnesses, the nature of the testimony they might have provided, or how calling the witnesses would have materially assisted his case. Without more, we are unable to. determine whether calling these witnesses would have been helpful in establishing Blystone’s defense. Thus, we conclude that Blystone’s underlying claim that counsel was ineffective for failing to call witnesses is without arguable merit. Johnson, supra; Polk, supra; Broadwater, supra.

Blystone next cites three instances of his trial counsel’s ineffectiveness for failing to object to certain jury instructions. Blystone contends that his attorney was ineffective for failing to make a contemporaneous objection to the charge, for failing to raise the inadequacy of the charge in post-trial motions, and thereby for failing to preserve the issue on appeal. Blystone argues that the trial court erred in its instruction to the jury-on the law of arson by omitting from its charge an essential element of the crime. However, Blystone fails to articulate precisely what element of the offense was omitted.

In evaluating the propriety of a jury instruction, we must consider the charge in its entirety; the error cannot be predicated on an isolated excerpt alone. Commonwealth v. Nelson, 389 Pa.Super. 417, 427, 567 A.2d 673, 678 (1989). Even if we find that the trial court erred in instructing the jury, we can only grant relief if the error prejudiced the defendant. Commonwealth v. Klinger, 369 Pa.Super. 526, 535 A.2d 1060 (1987). After carefully reviewing the jury charge as a whole, we find that the trial court thoroughly articulated each and every element of the offenses of arson endangering persons and arson endangering property. Nelson, supra. Therefore, Blystone’s claims of ineffective assistance of counsel in relation to the jury charge are devoid of merit. Johnson, supra; see also Commonwealth v. Manigault, 501 Pa. 506, 462 A.2d 239 (1983) (counsel is not ineffective for failing to preserve an issue for appellate review if the issue foregone lacks arguable merit).

Blystone also argues that his trial counsel’s failure to object to prejudicial and irrelevant testimony and failure to object to remarks made by the prosecutor at trial constitutes ineffective assistance of counsel. We find no merit in these arguments. Blystone’s mere characterization of testimony as prejudicial and irrelevant is insufficient to imbue it with the legal attributes necessary to make it objectionable. Furthermore, “[cjounsel does not have to raise every possible objection at trial, and he is not ineffective where he does not raise issues at trial that are without merit.” Commonwealth v. Burch, 248 Pa.Super. 8, 13-14, 374 A.2d 1291, 1293 (1977) (en banc) (citation omitted). Absent a showing that Blystone was actually prejudiced by his attorney’s failure to object, we cannot conclude that his attorney was ineffective. Durst, supra.

It is well settled in this Commonwealth that not every intemperate or inappropriate remark by the prosecutor requires a new trial. Commonwealth v. Baker, 511 Pa. 1, 511 A.2d 777 (1986). The Pennsylvania Supreme Court has held that:

[c]omments by a prosecutor do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, firming in their minds fixed bias and hostility towards the defendant so that they could not weigh the evidence objectively and render a true verdict.

Commonwealth v. D 'Amato, 514 Pa. 471, 490—491, 526 A.2d 300 (1987). In our review of the record, we found no prosecutorial comments which could have reasonably elicited such a fixed bias and hostility towards Blystone. Id. Therefore, we find Blystone’s claim that counsel was ineffective for failing to object to remarks made by the prosecutor to be without merit. Johnson, supra; D’Amato, supra.

Blystone insists that his attorney failed “to investigate the relevant circumstances of [his] case and explore all avenues leading to facts relevant to the case.” Unfortunately, Blystone neglects to indicate what evidence his attorney should have discovered or how the evidence would have helped his case. See Commonwealth v. Thomas, 372 Pa.Super. 349, 364, 539 A.2d 829, 837 (1988). This omission is fatal to Blystone’s claim and, therefore, we are unable to determine whether his underlying issue is of arguable merit. Thomas, supra; Johnson, supra.

In his next issue Blystone contends that his trial attorney was ineffective for advising him to waive his preliminary hearing. Blystone asserts that “counsel knowingly advised defendant to waive [his] preliminary hearing due to the lack of knowledge of defendant in exchange for (ROR) bail.” Blystone states that his attorney “knew defendant would do anything to get out of jail to support 3 young children.” This contention is utterly without merit. The record contains a waiver of the preliminary hearing signed by Blystone and his attorney. In signing the waiver, Blystone acknowledged that he was informed of his right to a preliminary hearing. The law presumes that an attorney acts in the interest of his client. Commonwealth v. Watson, 523 Pa. 51, 65-66, 565 A.2d 132, 139 (1989). In the absence of an offer of proof supporting Blystone’s allegation, we cannot say counsel was ineffective when he advised Blystone to waive the preliminary hearing. Durst, supra.

In his motion to withdraw counsel, Blystone asserts that his attorney was ineffective because “counsel did not act promptly to protect the accused” and because “counsel did not keep appellant informed of developments in the case so that appellant could make rational and informed decisions.” As Blystone fails to elaborate further, we are unable to assess the validity of these claims. “Allegations of the deprivation of the right to effective counsel are not self-sustaining. The burden of proof of the allegations remains with the claimant; their accuracy to be established by his submission of relevant proofs.” Hutchinson, 521 Pa. at 486, 556 A.2d at 372. Therefore, these claims lack merit.

Blystone next argues that his appointed counsel was ineffective for neglecting to file pre-trial motions. This contention is frivolous and patently untrue. The record clearly reveals that Blystone’s attorney did in fact file omnibus pre-trial motions on July 10, 1990.

Finally, Blystone contends that his trial attorney “acted ineffectively in all aspects of law.” Without more, we are unable to evaluate the merits of this claim. “Mere allegations of ineffectiveness standing alone on direct appeal will not warrant an evidentiary hearing if this Court is not presented with facts sufficient to support the claim.” Commonwealth v. Cottman, 327 Pa.Super. 453, 460, 476 A.2d 40, 43 (1984). Therefore, we find this claim to be without merit.

In light of the foregoing, we find that Blystone has failed to establish that any of the allegations of ineffectiveness of counsel that he presented in his so-called “Writ of Mandamus” or motion to withdraw counsel are of arguable merit. Johnson, supra. Therefore, our inquiry ceases. Nelson, supra. As we conclude that Blystone’s claims of ineffective assistance of counsel are clearly without merit, we will not remand for appointment of new counsel. Lawrence, supra. Blystone’s motion to withdraw counsel is hereby denied.

Judgment of sentence affirmed; motion to withdraw counsel denied.

      . The distance from Domino's Pizza to the fire scene is 6.8 miles. The travel time from Domino's Pizza to the fire scene is ten minutes and fifteen seconds.

      . Pursuant to Pennsylvania Rule of Appellate Procedure 902, a direct appeal permitted as of right from a lower court to an appellate court shall be taken by filing a notice of appeal with the clerk of the lower court. The notice of appeal must be filed within thirty days after the entry of the order from which the appeal is taken. Pa.R.A.P. 903; see also Commonwealth v. Cavanaugh, 500 Pa. 313, 456 A.2d 145 (1983). Upon receipt of the notice of appeal, the trial court may enter an order directing the appellant to file a concise statement of the matters complained of on appeal. Pa.R.A.P. 1925(b). "The purpose of the Pa.R.A.P. 1925(b) statement is to specify the particular issues which appellant intends to present on appeal in order to permit the trial court an opportunity to provide the appellate court with a focused and meaningful explanation for any challenged actions in its opinion.” Commonwealth v. Osteen, 381 Pa.Super. 120, 124, 552 A.2d 1124, 1126 (1989).
      Blystone's judgment of sentence was docketed in the trial court on February 8, 1991. Blystone then filed a notice of appeal with the trial court which was docketed on March 1, 1991. On April 26, 1991, the trial court ordered Blystone to file a concise statement of the matters complained of on appeal. Before filing a 1925(b) statement, however, Blystone sent a pro se motion for collateral relief under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq, to the trial court’s chambers on May 6, 1991. The PCRA petition was never filed with the prothonotary and consequently does not appear on the trial court’s docket.
      On May 8, 1991, the trial court entered an order dismissing Blystone’s PCRA petition. The order read: "Motion dismissed. Appeal is frivolous. See trial record.” On that date the trial court no longer had jurisdiction over the case, as Blystone had already filed a timely notice of appeal to this court on Mach 1, 1991. See Pa.R.A.P. 1701(a) (after an appeal is taken the trial court may no longer proceed further in the matter); see also Commonwealth v. Hairston, 323 Pa.Super. 449, 470 A.2d 1004 (1984) (the trial court’s order dismissing defendant’s pro se PCHA petition was a nullity because notice of appeal had already been filed at the time of the trial court’s order). Therefore, the trial court's order denying PCRA relief is void.
      In addition, according to Pennsylvania Rule of Criminal Procedure 1501, a motion for collateral relief must be filed with the clerk of the court in which the defendant was convicted and sentenced. Upon receipt of a motion for post-conviction relief, the clerk of the court must immediately docket the motion and thereafter transmit it, along with the record, to the trial judge. See Pa.R.Crim.P. 1503. All documents in criminal matters must be filed with the prothonotary in order to become part of the record. 42 Pa.C.S. § 2756(a)(1); see also Commonwealth v. Laskaris, 385 Pa.Super. 339, 561 A.2d 16 (1989) (documents in criminal matters must be filed with the clerk of the court as required under 42 Pa.C.S. § 2756(a)(1)). What is not of record simply does not exist for purposes of appellate review. Pa.R.A.P.1921; see also Commonwealth v. Osellanie, 408 Pa.Super. 472, 597 A.2d 130 (1991) (Superior Court is limited to considering only those facts which have been certified in the record on appeal).
      Leaving motions in a judge’s chambers, or even handing them to a judge in the courtroom or elsewhere, does not constitute filing. Commonwealth v. Lynch, 304 Pa.Super. 248, 252, 450 A.2d 664, 666 (1982). Here, Blystone "filed” a pro se PCRA petition by sending the petition to the judge’s chambers; the judge’s chamber’s date-stamped the petition on May 6, 1991. As the petition was never docketed, it did not become part of the record certified to this court, as required under Pennsylvania Rule of Appellate Procedure 1921. On appeal we are only permitted to consider matters which have been properly filed and duly certified in the record. 42 Pa.C.S. § 2756(a)(1); Laskaris, supra; Osellanie, supra; Lynch, supra.

      . The term "Anders brief” refers to the requirements set forth by the U.S. Supreme Court in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), for the withdrawal of appointed counsel in criminal appeals when counsel determines that the issues are wholly frivolous. Similarly, the term "Finley letter” refers to the requirements for withdrawal of appointed counsel in collateral appeals filed under the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq., outlined in Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988).

      . We note, parenthetically, that despite the mandate of Pennsylvania Rule of Appellate Procedure 1931, and official certification by the prothonotary that the record transmitted to this court "is a true and correct copy of the whole and entire record ...,” the record sent by the prothonotary of Mifflin County was incomplete. See Pa.R.A.P. 1931(c). The record transmitted to this court did not include the writ of mandamus docketed on December 12, 1991 or the letters docketed on July 16, 1991 and September 10, 1991. It was only through the sustained efforts of the Harrisburg office of the Superior Court Prothonotary that we received these documents. Without the documents, which appear on the trial court docket and therefore constitute part of the record, we would have been precluded from conducting an adequate review.
      We note also that it is the appellant’s obligation "to make sure that the record forwarded to an appellate court contains those documents necessary to allow a complete and judicious assessment of the issues raised on appeal.” Fiore v. Oakwood Plaza Shopping Center, 401 Pa.Super. 446, 460-461, 585 A.2d 1012, 1019 (1991); see also Pa.R.A.P. 1911(a). As this court stated in Commonwealth v. Roberson, 258 Pa.Super. 471, 393 A.2d 455 (1978) (citation omitted), it is not incumbent upon this court to expend "time, effort and man power to scout around the prothonotaries’ offices in fifty-nine courts of common pleas to unearth [letters, writs and PCRA petitions] that may have been presented to the courts, but not made part of the records.... ” Id. at 475, 393 A.2d at 457.

      . The record reveals that Blystone was released on $150,000.00 bail; he was ineligible for release on his own recognizance (ROR).


author: KELLY, Judge: CERCONE, Judge,

text:
    617 A.2d 786
    COMMONWEALTH of Pennsylvania v. Francisco Almena VAZQUEZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 3, 1992.
    Filed Nov. 16, 1992.

      Tony Sangiamo, Holly Springs, for appellant.
    John F. Nelson, III, Dist. Atty., Chambersburg, for Com., appellee.
    Before MONTEMURO, KELLY, and CERCONE, JJ.
   KELLY, Judge:

In this opinion we are called upon to determine whether reference to the fact that a defendant’s name appeared on a computer list of known drug dealers is sufficiently prejudicial as to require a new trial, notwithstanding curative instructions intended to countermand such prejudice. We find that the statement was irreparably prejudicial and reverse.

The instant appeal stems from the following facts. On May 25, 1990, appellant was charged with two counts of unlawful delivery. A jury trial was held on February 14, 1991. The Commonwealth called Trooper Gregory Stone who testified that, while undercover, he witnessed appellant sell cocaine. In an effort to demonstrate that Trooper Stone had become confused in his identification of appellant, defense counsel apparently attempted to establish that Officer Stone had engaged in several substantially similar transactions. When asked to explain a typical such transaction, Trooper Stone replied: “We have computers, and we have lists of known drug dealers. And, in this case, the defendant was on the list. I definitely knew he was a drug dealer.” N.T. 2/14/91 at 32. A mistrial was requested and denied in favor of a curative instruction.

The jury returned a verdict of guilty on both counts of unlawful delivery against appellant. Appellant’s post-trial motion requesting a new trial was denied, and this timely appeal followed.

Appellant contends that the introduction of the officer’s testimony constituted reversible error. We agree.

It is well-settled that evidence of crimes unrelated to the charge for which a defendant is being tried is generally inadmissible. Commonwealth v. Martin, 479 Pa. 63, 387 A.2d 835 (1978); Commonwealth v. Turner, 454 Pa. 439, 311 A.2d 899 (1973). However, not all improper references to prior criminal acts require the award of a new trial. The decision of whether to declare a mistrial in a criminal prosecution is within the sound discretion of the trial court and will not be reversed on appeal absent abuse of discretion. Commonwealth v. Reed, 400 Pa.Super. 207, 583 A.2d 459 (1990); Commonwealth v. Nelson, 389 Pa.Super. 417, 567 A.2d 673 (1989); Commonwealth v. Whiteman, 336 Pa.Super. 120, 485 A.2d 459 (1984). Moreover, this Court has held that the extreme remedy of a mistrial is not automatically required if it is determined that the inference of prior criminality was innocuous and that effective curative instructions were immediately given. Commonwealth v. Williams, 470 Pa. 172, 368 A.2d 249 (1977); Commonwealth v. Bruner, 388 Pa.Super. 82, 564 A.2d 1277 (1989); Commonwealth v. Fernandez, 333 Pa.Super. 279, 482 A.2d 567 (1984). Indeed, a mistrial must be granted only when an incident is of such a nature that its unavoidable effect is to deprive defendant of a fair trial. Commonwealth v. Chestnut, 511 Pa. 169, 512 A.2d 603 (1986); Commonwealth v. Brinkley, 505 Pa. 442, 480 A.2d 980 (1984); Commonwealth v. Kubiac, 379 Pa.Super. 402, 550 A.2d 219 (1988); Commonwealth v. Larkins, 340 Pa.Super. 56, 489 A.2d 837 (1985). Consideration of all the circumstances is necessary in determining whether an instruction can cure the exposure of improper evidence to the jury. Commonwealth v. Richardson, 496 Pa. 521, 526, 437 A.2d 1162, 1165 (1981). Among the circumstances to be considered are whether the remark was intentionally elicited by the Commonwealth, whether the Commonwealth exploited the reference, whether the answer is responsive to the question asked, and whether curative instructions were given were significant. Commonwealth v. Richardson, supra; Commonwealth v. Gaerttner, 335 Pa.Super. 203, 484 A.2d 92 (1984).

In Commonwealth v. Rivers, 238 Pa.Super. 319, 357 A.2d 553 (1976), a witness for the prosecution replied non-responsively on cross-examination by defense counsel that the defendant said “he had done a lot of federal time before.” This Court held that “because this is a clear indication of prior criminal activity, and because such activity will predispose the jury to find appellant guilty, prejudicial error has been committed.” Rivers, at 238 Pa.Super. at 323, 357 A.2d at 555. See also Commonwealth v. Wetzel, 276 Pa.Super. 445, 419 A.2d 541 (1980).

The testimony at issue in this case consists of the following dialogue during cross-examination of the Commonwealth’s only witness.

Q. Were the purchases that you made in other than the ones that formed the basis of this complaint done similarly in the same fashion or at least similar fashion as to the purchase that was made in this situation?
A. Some could be similar. I don’t always make a buy in somebody’s residence. It could be in a bar, could be in a parking lot. It could be with several other individuals involved. It could be by myself.
Q. Maybe I could be more specific and that might help you some. Specifically, an approach would be made to an individual, ask that individual if he can provide cocaine for you. And then as you testified here, if possible, make the transaction, take the evidence, field-test it, submit it to the lab following that same pattern?
A. Yeah, that is correct. Normally when I work an undercover investigation in areas, we usually—we have computers and we have lists of known drug dealers. And in this case the defendant was on the list. I definitely knew he was a drug dealer.

N.T. of 2/14/92 at 31-32.

The record indicates that the answer by Trooper Stone was not responsive to the question asked by defense counsel. Trooper Stone was asked to describe the drug purchase process starting at the approach of alleged drug dealers. There was no proper reason for Trooper Stone to mention that appellant was on a computer list of known drug dealers and that he “definitely knew he was a drug dealer.”

Moreover, although cautionary instructions were promptly given, they could not have cured the unavoidable prejudice suffered by such a remark. This was not a passing reference. The officer’s intent was unquestionably to convince defense counsel and/or the jury of the certainty of the identification by supporting it through reference to something arguably not susceptible to the same type of human error, i.e. a computer list of “known drug dealers.” Such a list would, even if reliable, show nothing more than appellant’s propensity to commit the very crime for which he was standing trial. It is precisely this reasoning that the rule against admitting bad acts is intended to proscribe.

In sum, although we are otherwise inclined to defer to the trial court’s superior vantage in assessing the probable impact of the challenged testimony on the jury, and notwithstanding the fact that the Commonwealth did not exploit or elicit this testimony, we are convinced that the unavoidable effect of this testimony was to deprive appellant of a fair trial. The record indicates that Trooper Stone was the only witness for the Commonwealth. The arrest of appellant was made approximately eight months after the alleged crimes were committed. The prejudicial testimony of Trooper Stone and the fact that the evidence against appellant was minimal, convinces us that appellant is entitled to a new trial.

Judgment of sentence reversed. Case remanded for a new trial. Jurisdiction relinquished.

CERCONE, J., filed a dissenting opinion.

CERCONE, Judge,

dissenting.

My esteemed colleagues in the majority conclude that Trooper Stone’s remark was irreparably prejudicial and that a new trial is therefore required. I cannot agree.

The record shows that following the testimony to which appellant objects, the court immediately held a brief sidebar conference during which counsel for appellant requested a mistrial or cautionary instructions. The lower court denied the request for a mistrial, but forthwith gave the jury the following instruction:

THE COURT: Members of the jury, defense counsel has been asking a lot of questions to Trooper Stone about how they go about their investigations, and what information they used, and Trooper Stone told you they use a computer thing of people they suspect or know.
And I’m going to ask you to disregard the last statement that on their computer he showed up as a known drug dealer. There is—we don’t know how that information got in the computer. It certainly is not evidence that the Commonwealth can use.
You have taken an oath to decide the case on the evidence you hear in court today and the Court instructs you to disregard that statement of the Trooper in your deliberations.

After this instruction was given, defense counsel thanked the court and trial proceeded. No further mention was made at trial of Trooper Stone’s remark.

When viewed in the context of the whole trial, I am of the opinion that the lower court’s cautionary instruction was adequate. The improper testimony was quickly stricken by the court and an instruction to disregard the statement was promptly issued. Thereafter, there was no further mention of the witness’ remark. Furthermore, Trooper Stone’s improper statement was not elicited by the Commonwealth, but by defense counsel. The Commonwealth made no attempt to exploit the remark.

Unlike the majority, I would not characterize the evidence against appellant at trial as minimal. The evidence was direct that the trooper personally purchased drugs from appellant on two separate occasions. After the purchases, the trooper testified that he placed the contraband in clearly marked envelopes which remained in his possession until the purchased substances were verified as illegal drugs. I cannot characterize such explicit and direct evidence of appellant’s guilt as minimal, despite the fact that it was given by only one witness.

In Commonwealth v. Yates, 531 Pa. 373, 613 A.2d 542 (1992), the Pennsylvania Supreme Court held that the testimony of a police officer that he had been notified by an informant that appellant had been “dealing drugs” at a certain location was prejudicial error requiring a new trial. The court held thus despite the fact that the lower court had given the jury a cautionary instruction to the effect that Yates was not before them on a charge of drug dealing, and that the officer’s testimony was admitted only to explain why the police had gone to the location where they arrested Yates.

The instant case differs from Yates in several significant aspects. Here, the lower court did not permit the offensive testimony to be admitted for any reason, but immediately struck it from the record and provided the jury with an unmistakable instruction that they were not to consider the unfortunate remark for any purpose in their deliberations. In addition, the properly admitted evidence of guilt in the present case was far more incriminating than was the evidence against the defendant in Yates. In Yates, the police converged on the site of Yates’ arrest in response to a phone call from an informant that a “large black male” had been “dealing drugs” at the location. When the police arrived at the scene, they saw Yates, a man who matched the informant’s description, carrying a large brown bag. Yates began to run when he saw the unmarked police car. The police did not observe Yates engage in any drug transaction; thus, the hearsay statement of the informant that he saw Yates “dealing drugs” could have served to supply the jury with an additional piece of evidence which would have filled in the missing element in the body of circumstantial evidence which the Commonwealth had assembled against Yates.

In contrast, the evidence in the instant case was that Trooper Stone had personally engaged in two separate drug transactions with appellant, and in both of those instances, appellant himself had sold the trooper illegal drugs. In the face of such direct and explicit evidence of appellant’s identity and guilt, the improper remark of Trooper Stone did not possess the quantum of prejudice that the statement of the policeman did in Yates. Trooper Stone’s reference to the police computer files did not serve to supply the jury with any additional information which it needed to fill in the gaps in the Commonwealth’s evidence, as there were no such missing elements here. As such, and in light of the immediate corrective response of the lower court, Trooper Stone’s improper reference constituted harmless, curable error.

The taint resulting from an improper reference to prior criminal activity may, in an appropriate case, be removed by a cautionary instruction without resort to the extreme remedy of aborting an otherwise fair trial. Commonwealth v. Richardson, 496 Pa. 521, 437 A.2d 1162 (1981); Commonwealth v. Povisk, 479 Pa. 179, 387 A.2d 1282 (1978). I would find, as did the lower court in its well-reasoned opinion, that the cautionary instruction provided immediately after Trooper Stone’s remark was sufficient to cure the prejudice which may have inured to appellant. Especially in light of the overwhelming evidence of his guilt, accordingly, I deem it unnecessary to grant appellant a new trial, and would affirm the judgment of sentence.