author: HOFFMAN, Judge: SPAETH, Judge,

text:
    439 A.2d 122
    Milli CONTI and Rosario Conti v. SHAPIRO, EISENSTAT, CAPIZOLA, O’NEIL, LISITSKI AND GABAGE, PA and Carl Redel and City of Philadelphia. Appeal of Carl REDEL.
    Superior Court of Pennsylvania.
    Argued Dec. 4, 1980.
    Filed May 29, 1981.
    Reargument Denied Jan. 25, 1982.

      Edward Benoff, Philadelphia, for appellant.
    Mark R. Bosniak, Philadelphia, for Conti, appellees.
    Lawrence W. Richman, Philadelphia, for Shapiro et al., appellees.
    Richard W. Silver, Assistant City Solicitor, Philadelphia, for City of Philadelphia, appellee.
    Before SPAETH, BROSKY and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court abused its discretion in denying his petition to open a judgment entered against him. We disagree and, accordingly, affirm the order of the lower court.

On February 11, 1977, appellee and her husband filed a complaint in trespass against appellant and others, alleging that she had been injured when she fell on the sidewalk outside appellant’s shop. Although appellant was duly served, no appearance was entered on his behalf. After engaging in some discovery with the other parties, appellee filed a certificate of readiness, whereupon the case proceeded to arbitration. Appellant failed to appear at the hearing which was held on July 13, 1978. Consequently the panel found in favor of appellee against appellant and awarded her $1,500. Judgment was entered on the arbitration award on September 29, 1978. Appellee immediately began execution proceedings by filing a praecipe for a writ of execution. On October 13, 1978, the Sheriff of Philadelphia levied upon appellant’s property. On November 27, 1978, appellant petitioned to open and/or strike the judgment against him, alleging that he had first learned of the judgment when the Sheriff levied upon his property and that his failure to appear at the hearing was excused because he had no notice and he reasonably believed that his insurer had undertaken his defense. The lower court denied his petition. This appeal followed.

Petitions to open judgments are equitable in nature and are addressed to the sound discretion of the lower court. See, e.g., Forest Hills Transfer & Storage Co., Inc. v. Beaver Valley Builders Supply, Inc., 271 Pa.Super. 566, 568, 414 A.2d 628, 629 (1979). Our Court will not reverse an order denying such a petition unless the record shows a clear abuse of discretion. Forest v. Rotkis, 244 Pa.Super. 447, 368 A.2d 805 (1976). Moreover, in a trespass action, a petition to open may be granted only if: (1) the petition was timely filed, and (2) there exists a legitimate explanation or excuse for the failure which occasioned the judgment. See Forest Hills Transfer & Storage Co., Inc. v. Beaver Valley Builders Supply, Inc., supra, 271 Pa.Super. at 569-70, 414 A.2d at 629-30. The lower court denied appellant’s petition because it found that appellant had failed reasonably to explain his failure to appear at the arbitration hearing.

Appellant contends that the lower court erred because his failure to appear was excused by the fact that he lacked notice of the hearing and that he reasonably believed that his insurer had undertaken his defense. We disagree. Although appellant testified at his deposition that he took the complaint and other relevant papers he subsequently received to his insurance agent, who allegedly assured him that he was covered appellant “offered no explanation as to why the insurance carrier failed to act.” Bethlehem Apparatus Co., Inc. v. H.N. Crowder, Jr., Co., 242 Pa.Super. 451, 455, 364 A.2d 358, 360 (1976) (petitioner lacked justifiable reliance upon insurer). Mere allegation of negligence on the part of an insurance carrier will not constitute justification to open a default judgment. DiNenno v. Great Atlantic & Pacific Tea Co., Inc., 245 Pa.Super. 498, 502, 369 A.2d 738, 740 (1976). Unlike those cases in which appellate courts found petitioner-insureds’ reliance to be justified, e.g., Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971); Forest Hills Transfer & Storage Co., Inc. v. Beaver Valley Builders Supply, Inc., supra, appellant has not offered any evidence to explain the failure of the insurance company to undertaken his defense. Cf. Sprouse v. Kline-Styer-McCann, Post No. 7155 Veterans of Foreign Wars, 237 Pa.Super. 419, 352 A.2d 134 (1975) (insurer advised petitioner by letter that it had entered an appearance for him prior to entry of default judgment). Consequently, we cannot conclude that the lower court abused its discretion in denying appellant’s petition to open. See Murphy v. Smith, 415 Pa. 512, 204 A.2d 275 (1964).

Order affirmed.

SPAETH, J., files a concurring and dissenting opinion.

SPAETH, Judge,

concurring and dissenting:

I agree with the majority that the lower court correctly denied the petition to strike. However, in my opinion, appellant did offer a reasonable explanation for his failure to appear at the arbitration hearing. His petition to open should therefore have been granted.

Millie and Rosario Conti brought this action to recover damages for injuries allegedly suffered as a result of Millie Conti having fallen on the sidewalk in front of appellant’s poultry stand in Philadelphia’s Italian Market in March 1976. The action was against appellant, as tenant of the premises, the law firm of Shapiro, Eisenstat, Capizola, O’Neil, Lisitski & Gabage, as owners of the premises, and the City of Philadelphia. The Shapiro law firm is owner only in name; appellant is equitable owner, the law firm holding title as a “straw” party. R. 24a.

Appellant was served with process on March 2, 1977. An arbitration hearing was held on July 13, 1978, at which appellant did not appear. The arbitrators entered judgment in favor of Millie Conti and against appellant in the amount of $1,500. A finding was entered against Rosario Conti and in favor of appellant, and against Millie and Rosario Conti as to all other defendants. Judgment was filed on September 29,1978, and a praecipe for writ of execution followed. The sheriff levied on appellant’s property on October 13, 1978. Appellant forwarded the sheriff’s levy to the John F. Curry Agency as agent for Merchants Mutual Insurance Company. In a letter dated November 3, 1978, the agency informed appellant that he was not insured by Merchants Mutual; the letter stated that the policy was made out in the name of the Shapiro law firm. Appellant then obtained his present counsel, who petitioned to open judgment on November 29, 1980.

At the hearing on the petition to open appellant testified that he was at his poultry stand when Millie Conti alleges she fell, that he did not see her fall, R. 25a, and that eyewitnesses, whom he identified, told him that she fell in the middle of the street and not in front of his property, R. 26a & 27a. Plaintiff then offered the following explanation of why he failed to present this defense at the arbitration hearing:

Q. Now, when you were first served with the Complaint, which are the court papers in which Miss [sic] Conti made her claim against you, what, if anything, did you do with those court papers?
A. I got the papers, and I brought it to my lawyer. I say lawyer; I mean my insurance.
Q. Did you turn those papers over?
A. To my insurance man.
Q. Did you discuss the claim with them [sic]?
A. I told them that I got that, that somebody claimed that they fell on my pavement, and they didn’t fell on my pavement. Then they send me a letter.
Q. What, if anything, did they tell you?
A. They told me they take care of this.
Q. Did you tell them you had witnesses?
A. I told them I got witnesses, yes.
Q. Besides the one time you had the complaint; did you ever take any other correspondence to them, any letters to them or anything?
A. Yes. All the letters that I got I brought to the insurance.
Q. Now, did you have more than one conversation with your insurance agent with regard to this claim?
A. Yes. Whatever came, a letter, I brought it to him.
Q. Did they ever tell you at any time that they did not insure you and were not going to take care of any of these matters?
A. When they got—
Q. Before that.
A. No.
Q. After you got notice from the sheriff?
A. From the sheriff?
Q. Right.
A. I call him up. He say, “You not insured.” “What do you mean I’m not insurance. I’m paying you insurance. I got the checks and everything. I pay you with my checks.”
R. 28a-30a.

The lower court accepted this testimony, but said:

Even assuming the truthfulness of [appellant’s] testimony we cannot accept it as a reasonable excuse for petitioner’s failure to act on his own behalf. When he received notice of the arbitration hearing he had an obligation to inquire into the status of the case, and if nothing else, at least attend the hearing himself.
R. 22a.

The record is clear that appellant was never sent, and never received, the official arbitration hearing notice. See R. 12a. Nonetheless, the lower court found that appellant had adequate notice of the hearing because he received “a copy of a letter dated May 24, 1978 from Anthony Harzenstein, the panel chairman, advising [him] of the rescheduling of the arbitration hearing in this case to the date and time it was actually held,’’ R. 21a, and because he also received “a cover letter, dated August 30, 1977, from plaintiff’s counsel .. . referring to the enclosure of the Certificate of Readiness filed with the court on the date,” id.

Harzenstein’s letter stated, in its entirety, only that “[t]he above-captioned case has been relisted for,” then stating a time, date and place. R. 48a. It was written on Harzenstein’s professional stationery. Contrary to the lower court’s statement, the letter did not in any way indicate that the matter being relisted was an arbitration hearing; nor did it indicate that Harzenstein was chairman of an arbitration panel, or that appellant would be expected to present his defense at the time and place stated. R. 48a. The cover letter of August 30, 1977, stated, in its entirety: “Enclosed please find a copy of a Certificate of Readiness, the original of which is being filed with the Court. If you have any questions regarding this, I would suggest that you turn it over to your attorney.” R. 47a. The certificate of readiness enclosed with this letter listed “Merchants Mutual Insurance Company” as the carrier. R. 13a. While I agree that these letters should have alerted appellant to the fact that action was being taken on the lawsuit instituted by the Contis, I cannot agree that they put appellant on notice that he was in any way mishandling his defense. To the contrary: The cover letter to the certificate of readiness instructed appellant that if he had any questions he should “turn [the matter] over to your attorney.” R. 47a. I think appellant reasonably thought he was doing the equivalent of that when he gave all the material he had regarding the case to his insurance agent. I cannot understand what the lower court expected appellant to learn from the letter other than the fact that the case was progressing toward resolution.

The majority suggests that appellant’s reliance on the carrier was nonetheless unreasonable. In support of its position the majority cites, without analysis, Bethlehem Apparatus Co. Inc. v. H.N. Crowder, Jr., Co., 242 Pa.Super. 451, 364 A.2d 358 (1976). In Bethlehem Apparatus, we affirmed a refusal to open judgment where the insured petitioner had expressed doubt about whether the claim it forwarded to its carrier was covered, yet had made no inquiries about whether the carrier would in fact represent it. Id., 242 Pa.Super, at 455, 364 A.2d at 360. Here, appellant not only did not have any doubts concerning the carrier’s responsibility, but the carrier’s agent told him that it would “take care” of the matter for him. R. 28a.

In Sprouse v. V.F.W. Post 7155, 237 Pa.Super. 419, 352 A.2d 134 (1975), the petitioner, who was president of a V.F.W. association, was sued together with the association and other of its members. The petitioner erroneously thought that the association’s carrier would protect him, and he forwarded all the papers relating to the litigation to the carrier. After judgment was entered against him, he discovered that the association’s carrier would not protect him. The lower court refused to grant his petition to open, but we reversed, saying:

We are reluctant to let stand a default judgment where a litigant has taken steps that he reasonably believes will result in the protection of his interests. This would be a different case had appellant ignored the process and done nothing. In this case, however, appellant acted, although mistakenly, to protect his interests.
Id., 237 Pa.Super. at 422, 352 A.2d at 136.

I believe the same may be said here.

The petition to open judgment should be granted.

       Appellant contends also that the lower court erred in refusing to strike the judgment. We disagree. A petition to strike may be granted only when a fatal defect appears on the face of the record, and the facts are not controverted. Liquid Carbonic Corp. v. Cooper & Reese, Inc., 272 Pa.Super. 462, 416 A.2d 549 (1979). In search of such a defect, a court will only look to the record as it existed when the judgment was entered. Linette v. Linette, 434 Pa. 441, 254 A.2d 7 (1969). From our review of the record, we find no fatal defect.

      . Appellant had to show that he filed his petition to open promptly, Broad Mountain Club, Inc. v. Lazur, 461 Pa. 668, 337 A.2d 599 cert. denied, 423 U.S. 1020, 96 S.Ct. 458, 46 L.Ed.2d 392 (1975), but he did. This being a trespass action, he did not have to show a meritorious defense, Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971); Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971), but he did show such a defense, which enhanced the equities in favor of granting his petition, Balk v. Ford Motors Co., supra, 446 Pa. at 140 n.3, 285 A.2d at 130 n.3.


source: Caselaw Access Project

author:
BROSKY, Judge:
      SPAETH, Judge,

license: Public Domain

text:
    439 A.2d 127
    COMMONWEALTH of Pennsylvania v. Reginald McNEIL, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 21, 1980.
    Filed Dec. 4, 1981.
    Petition for Allowance of Appeal Denied March 18, 1982.

      Arnold L. New, Philadelphia, for appellant.
    Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, BROSKY and VAN der VOORT, JJ.
   BROSKY, Judge:

Appellant was charged with the crimes of rape, recklessly endangering another person, terroristic threats, indecent assault, indecent exposure, unlawful restraint, kidnapping and possessing instruments of crime, as well as violations of the Uniform Firearms Act. On April 16, 1979, he pleaded guilty to rape, terroristic threats and carrying firearms on a public street. The remaining charges were nolle prossed. No post-verdict motions were filed.

Thereafter, appellant was sentenced on June 19, 1971 to a term of imprisonment of five to ten years for rape and two to four years on the firearms charge, to run concurrently. Sentence on the terroristic threats charge was suspended. At the close of the sentencing hearing, Mr. Smith, appellant’s public defender, stated in open court to appellant, in regard to his post-trial warnings, “If you wish to appeal, you must do so within 30 days of today’s date on only the grounds that have already been explained to you during the colloquy on the guilty plea.”

Appellant was not told that before he could take an appeal from any sentence imposed, it would first be necessary to file a petition to withdraw the plea in accordance with Pa.R.Crim.P. 321. Three days later, on June 22, appellant was brought back before the sentencing judge who informed him in detail of the requirement that he first file written motions, within ten days, challenging the validity of the plea, the legality and propriety of the sentence, and whether the plea was entered voluntarily and intelligently. Appellant was told that he had until July 3, 1979 to file the motions. No motions were filed in accordance with Pa.R. Crim.P. 321. On July 17, 1981, notice of appeal to our court from the judgment of sentence was filed by appellant pro se. On September 20,1979, the lower court filed an opinion which held that appellant had waived his right to appeal to our court by failing to file a motion with the lower court challenging the validity of the guilty plea.

In his brief, appellant argues that his public defender was ineffective for allowing the guilty plea to proceed, on the ground that appellant had stated that he had no knowledge of the incident and therefore, the guilty plea may not have been voluntary. Appellant also contends that his counsel was ineffective for not correctly informing him of his obligation to first file a petition to withdraw his plea within ten days before perfecting an appeal to the Superior Court.

To begin with, we note that appellant is simply disguising a challenge to the voluntariness of his guilty plea by phrasing it in the language of an ineffectiveness claim. By so doing, appellant apparently hopes to circumvent the fact of his failure to file a petition to withdraw the plea within the requisite ten day period. However, the record clearly shows that appellant was apprised of his appellate rights, including the obligation to file motions attacking the validity of the guilty plea within ten days, both at the time of the initial guilty plea colloquy, and at the special colloquy three days after sentencing. At the time the guilty plea was entered, the following colloquy took place:

THE COURT: But when you give up your right to a trial and you plead guilty, you can appeal to a high court on only three very narrow grounds, and those grounds are the right of the court to try you . . . the legality of the sentence .. . [and] whether or not your plea was entered into voluntarily, understandingly, with a full knowledge of the rights you were giving up and whether there was any force or threats, whether you actually entered this plea of guilty voluntarily and of your own free will. Do you understand that?
A. Yes, ma’am.
Q. I want to tell you further that if you wish to take an appeal from any sentences imposed as a result of your plea, it would be necessary for you to first file a petition to withdraw your plea before me, setting forth your reason for withdrawal of the plea, and there is no assurance that your petition would be granted.
A. Yes, ma’am.
Q. Do yo;' understand that?
A. Yes, ma’am.
Q. I must also make clear to you that I will accept your plea of guilty only if you assure me this morning that your plea is made by you of your own free will. Now, is your plea of guilty being entered of your own free choice and free will?
A. Yes, ma’am.

Later in the proceeding, the following exchange took place:

BY THE COURT:
Q. If you wish to withdraw your guilty plea which I am going to take today, I am going to defer sentence to give you an opportunity. I am going to defer sentence for two reasons. One is that I must have a presentence investigation and a psychiatric evaluation, but I am also going to defer sentence to give you an opportunity to withdraw your plea, and if you wish to do so, you must do so within ten days, and that petition to withdraw the plea must be in writing to this Court before you are sentenced. Is that quite clear to you?
A. Yes, ma’am.
Q. You must file this petition before you are sentenced or you will no longer be able to withdraw your plea. You are entitled to a lawyer if you wish to withdraw your plea, and, of course, Mr. Smith of the Defender’s Office would continue to represent you if you cannot afford a lawyer. Is that clear?
A. Yes, ma’am.
Q. Do you wish to withdraw your plea?
A. No, ma’am.

Appellant was again informed of his obligation to file motions attacking the validity of his guilty plea within ten days, when he was brought back before the court on June 22 for the express purpose of being so informed. At that time, the following exchange occurred:

THE COURT: Mr. Smith, who represented you at the time of sentencing, was asked to give you your post-sentencing warnings, and instead of telling you what I am going to tell you now, he told you that you had 30 days to appeal to the Superior Court with respect to the sentence or any question as to the validity of your plea. That was not correct. Actually, when you plead guilty and the court accepts the plea and sentences you, you have an absolute right to appeal to the Superior Court. However, before you are permitted to do so or to file that appeal, you must first present written motions in writing before me challenging the validity of the plea, including the right of this Court to try you, the legality and the propriety of the sentence which I have imposed, and whether you entered your plea voluntarily, intelligently, and of your own free will. Do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Such a motion must be filed within ten days from today, and only those grounds which are contained in that motion or those motions will be available to you if you wish to appeal to the Superior Court of Pennsylvania. Do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And that would be so unless those particular grounds did not exist within the ten-day period. Do you understand that if you do not file these motions within ten days from today, you will be giving up the right to raise these grounds on appeal?
THE DEFENDANT: Yes, Your Honor.
THE COURT: In effect, as a result of that, if you don’t file them within ten days, you will be giving up your right to appeal to the higher court. Is that clear to you?
THE DEFENDANT: Yes, Your Honor.
THE COURT: If you file those motions to withdraw your plea or challenging the validity of the plea and this Court should rule adversely to you or deny your motions, then you must file your appeal to the Superior Court within 30 days from the date of the denial. Do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you understand that you are entitled to counsel who would file the appeal on your behalf and would file these motions on your behalf?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you have any questions about your guilty plea, the sentence, your right to counsel, and the right to challenge the validity or propriety of your guilty plea?
THE DEFENDANT: Yes.
THE COURT: What is your question?
THE DEFENDANT: About the time.
THE COURT: It must be filed within ten days from today. It would have to be in writing before me by Tuesday, July 3. (Emphasis added.)

It is well settled that our appellate courts will not consider challenges to guilty pleas which are raised for the first time on appeal. As we stated in Commonwealth v. Dowling, 482 Pa. 608, 609, 394 A.2d 488, 489 (1978),

Our cases have iterated and reiterated that the proper procedure by which to attack a guilty plea is to file in the trial court which accepted the plea a petition to withdraw it. [Citations omitted.]

See Pa.R.Crim.P. 321, Pa.R.A.P. 302.

It is clear from the record here that appellant was sufficiently informed by the court of his obligation to challenge the plea within ten days. Therefore, his claim that his counsel was ineffective for failing to so inform him lacks merit. In addition, we are convinced by our review of the record that appellant understood the court’s warnings. As the lower court noted, appellant completed the eleventh grade and understands the English language, and was not under the influence of drugs or intoxicants at the time he was so advised. Nor was he suffering from any “black-out” episodes.

Therefore, we hold that appellant waived the right to have his appeal considered by our court. We find that the lower court judge took every possible step to ensure that appellant’s appellate rights were protected, in two lengthy colloquies. Furthermore, appellant, who was given the opportunity by the court to ask questions concerning his rights, asked about the time period for filing motions pursuant to Pa.R.Crim.P. 321, indicating that he understood the substance of what was said to him but wanted to make sure of the time period.

Accordingly, we affirm the sentence imposed by the court below.

SPAETH, J., files a dissenting opinion.

SPAETH, Judge,

dissenting:

I agree with the majority that a party challenging a guilty plea on appeal must ordinarily file a motion to withdraw the plea in the court in which it was entered. Commonwealth v. Dowling, 482 Pa. 608, 394 A.2d 488 (1978); Commonwealth v. Lee, 460 Pa. 324, 333 A.2d 749 (1975). However, it is settled that appellate review of a challenge to a guilty plea will be afforded where, as here, the challenge is that counsel’s ineffectiveness contributed to entry of the plea. Commonwealth v. Unger, 494 Pa. 592, 432 A.2d 146 (1980); Commonwealth v. Ford, 484 Pa. 163, 398 A.2d 995 (1979); Commonwealth v. Ray, 483 Pa. 377, 396 A.2d 1218 (1979); Commonwealth v. Weiss, 289 Pa.Superior Ct. 9, 432 A.2d 1020 (1981).

Appellant argues that he entered his guilty plea because his counsel failed to recognize and advise him that he should not plead guilty because he properly could not. Specifically, appellant argues that his counsel knew that he had a history of black-outs, had blacked out at the time of the rape, and was therefore unable to recall anything about the incident, but that nevertheless, counsel did not recognize and advise him that he could not properly plead guilty because he could not admit to committing a crime that he had no recollection of committing.

The Commonwealth responds that “[ejven if [appellant] genuinely could not recall raping Ms. King, . . . this would not automatically invalidate his guilty plea” because, where there is overwhelming evidence of guilt, an accused may intelligently and voluntarily decide that even though he cannot recall the incident, he may as well plead guilty. Brief for Commonwealth at 4, citing Commonwealth v. Cottrell, 433 Pa. 177, 249 A.2d 294 (1969). Here, the Commonwealth says, the evidence of appellant’s guilt was overwhelming. Id. at 4-5. The difficulty with this response is that the record does not show that appellant did decide that he might as well plead guilty, even though he could not recall the incident, because the evidence was so overwhelming. Nowhere in the colloquy does appellant say he had made such a decision, nor does his counsel say so. There are only some general, conclusory statements. For example, appellant responded in the affirmative when asked by the court, “Are you satisfied that he [appellant’s counsel] knows all the facts of your case and has had sufficient time to look into any questions either you or he may have about the case?” N.T. 4/16/79, 10. Also, counsel told the court, “It is my opinion that [appellant] understands what he is charged with and what the nature of the changes are, and I have been able to discuss the case with him.” N.T. 4/16/79, 11. The fact that appellant was “satisfied” that counsel had properly advised him does not reveal what advice counsel gave, and neither does counsel’s statement that he had “been able to discuss the case” with appellant. Commonwealth v. Unger, 494 Pa. 592, 596, 432 A.2d 146, 147 (1980) (“The client cannot be expected to understand the significance of facts which may constitute a defense.”).

Appellant further argues that counsel was ineffective in failing to recognize and advise him that his black-outs indicated a mental condition such as might afford a defense to the charge. Appellant’s Brief at 8 n.2. If indeed at the time of this incident appellant did not know what he was doing, a defense of not guilty by reason of insanity might have been available. The record, however, does not show the counsel discussed this possibility with appellant before permitting him to plead guilty.

The majority characterizes appellant’s arguments as “simply disguising a challenge to the voluntariness of his guilty plea by phrasing it in the language of an ineffectiveness claim.” Majority op. at 128. I can find no basis for this statement. Of course, it may in fact be correct, but that does not appear from the record. To the contrary, the record suggests that there may be substance to appellant’s assertion that counsel did not advise him as fully as required to enable him to enter an intelligent and voluntary guilty plea. The record indicates that as a child, appellant attended a “retarded educable” school, and that he has suffered black-outs since the age of 12. N.T. 6/19/79, 2-3. Appellant apparently received psychiatric treatment for these black-outs as an outpatient at a mental institution from 1977 to early 1978. N.T. 4/16/79, 5-7. Since this treatment, appellant testified, he has had at least one more black-out, in the summer of 1978. N.T. 4/16/79, 7. At sentencing, appellant said, “I don’t remember pointing no gun at no one,” “I didn’t know what I was doing,” and “I ain’t knowed what I was doing at that time.” N.T. 6/19/79, 6, 18, 21.

Certainly appellant’s disclaimers of knowledge are transparently self-serving, and I am as skeptical of them as the majority. At this stage of the case, however, skepticism is irrelevant. The only issue before us is not whether appellant’s claim of ineffective counsel is meritorious, but whether it is arguable. Sometimes the record will demonstrate that such a claim is not arguable, but that is not so here, and when it is not so, the case should be remanded for an evidentiary hearing, at which the lower court may determine what in fact counsel did tell the accused, and why, and whether that advice represented effective assistance of counsel. Commonwealth v. Connolly, 478 Pa. 117, 385 A.2d 1342 (1978); Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975); Commonwealth v. McCartan, 280 Pa.Superior Ct. 531, 421 A.2d 849 (1980); Commonwealth v. Jackson, 267 Pa.Superior Ct. 63, 405 A.2d 1304 (1979).

I should remand for an evidentiary hearing on the alleged ineffectiveness of counsel.

      . On November 1, 1979, new counsel was appointed to represent appellant.

      . Appellant asserts that he “blacked-out” during the period of time in which the offense was committed.

      . As the Comment to Pa.R.Crim.P. 321 indicates, the rationale for the rule is to give the trial court the first opportunity to correct any error asserted and to provide a full record for the appellate court if necessary.

      . See footnote 2, infra.


author: DiSALLE, Judge: POPOVICH, Judge,

text:
    439 A.2d 131
    COMMONWEALTH of Pennsylvania, v. Reginald McNEILL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 20, 1981.
    Filed Dec. 4, 1981.

      Charles R. Bernsee, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, DiSALLE and POPOVICH, JJ.
   DiSALLE, Judge:

Appellant, Reginald McNeill, was convicted of escape in a non-jury trial. 18 Pa.C.S.A. § 5121(a). The sentencing court graded the offense as a felony of the third degree and sentenced appellant to be incarcerated for one to five years. 18 Pa.G.S.A. § 5121(d); 18 Pa.C.S.A. § 1103.

18 Pa.C.S.A. § 5121 states:

(a) Escape—A person commits an offense if he unlawfully removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period.
* * * * ;¡. *
(d) Grading—
(1) An offense under this section is a felony of the third degree where:
(1) the actor was under arrest for or detained on a charge of felony or following conviction of crime;
(ii) the actor employs force, threat, deadly weapon or other dangerous instrumentality to effect the escape; or
(iii) a public servant concerned in detention of persons convicted of crime intentionally facilitates or permits an escape from a detention facility.
(2) Otherwise an offense under this section is a misdemeanor of the second degree.

Appellant contends that the sentencing court erred when it graded his escape as a felony of the third degree, § 5121(d)(1), rather than as a misdemeanor, § 5121(d)(2). He argues that his sentence is illegal because the trial court found him guilty only on the first count of the criminal information filed against him. The first count, he argues, does not contain any information which would permit his escape to be graded as a felony. We agree.

The first count of the information reads:

First count—that on or about February 24, 1979 in Philadelphia County, Reginald McNeill did unlawfully remove himself from official detention following temporary leave granted for a specific purpose or limited period.

This count is an almost verbatim recitation of the statutory definition of escape, § 5121(a), supra, but is silent on the grade of the offense.

In Commonwealth v. Longo, 269 Pa.Super. 502, 410 A.2d 368 (1979), our court vacated a judgment of sentence and remanded for resentencing a conviction for retail theft. 18 Pa.C.S.A. § 3929 (Supp. 1981-82). In Longo we held that an indictment for retail theft must state that the defendant has at least two prior convictions for retail theft before the defendant’s conviction may be graded as a felony of the third degree; otherwise the conviction must be graded as a misdemeanor. We stated that “Retail Theft is an offense ‘different in kind and character from’ Retail Theft, Third Offense.” Id., 269 Pa.Super. at 503, 410 A.2d at 369. Accord Commonwealth v. Herstine, 264 Pa.Super. 414, 399 A.2d 1118 (1979).

The statute defining escape, like that dealing with retail theft, incorporates the grading of the offense. We therefore hold that escape under § 5121(d)(1), felony of the third degree, is “different in kind and character from” § 5121(d)(2), misdemeanor of the second degree. Consequently, if an indictment or information fails to set forth the degree of the offense, a conviction for escape must be graded as a misdemeanor of the second degree. See Commonwealth v. Jones, 279 Pa.Super. 93, 420 A.2d 1046 (1980) (grading of defendant’s escape conviction upheld because the information identified the charge as a felony).

In the present case appellant was convicted only on the first count of the indictment which makes no reference to the degree of the offense. Appellant, therefore, may be sentenced only to a maximum of two years imprisonment. 18 Pa.C.S.A. § 5121(d)(2); 18 Pa.C.S.A. § 1104. The sentence imposed, imprisonment for one to five years, is beyond this statutory limit and therefore illegal. See Longo, supra.

Nor may the Commonwealth rely on the second or third counts of the indictment to upgrade the conviction to a felony because the trial court failed to find appellant guilty of those counts. The sentencing court is limited to the trial court’s finding of guilt only on the first count and is, therefore, restricted to the language of the first count. For this same reason the sentencing court may not upgrade the conviction based on trial testimony that appellant was in official detention as the result of a felony conviction. See Longo, supra.

Judgment of sentence vacated and case remanded for resentencing.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting:

Appellant argues, and the Majority agrees, that because he was found guilty of only the First Count of a three count Information charging Escape, which provided:

“First count—that on or about February 24, 1979 in Philadelphia County, Reginald McNeill did unlawfully remove himself from official detention following temporary leave granted for a specific purpose or limited period[,]”

the prosecution’s failure to set forth therein any information which would permit his escape to be graded a felony, the sentence imposed should not have “exceeded the two (2) year sentence otherwise provided by 18 P.S. 5121(d)(2)[ ]” for misdemeanor violations. (Appellant’s Brief at 6) I do not agree.

Pennsylvania practice requires that an Information contain “a plain and concise statement of the essential elements of the offense substantially the same as or cognate to the offense alleged in the complaint; . . . . ” (Emphases added) Pa.R.Crim.P. 225(b)(5). As we stated in Commonwealth v. McIlwain School Bus Lines, Inc., 283 Pa.Super. 1, 4, 423 A.2d 413, 414 (1980):

“This requirement^ i.e., for a plain and concise statement of the essential elements of the offense,] is based on Article I, Section 9, of the Pennsylvania Constitution, which provides that ‘[i]n all criminal prosecutions the accused hath a right ... to demand the nature and cause of the accusation against him.’ This provision in turn is founded on principles of fairness to the accused:
In a criminal prosecution it is imperative that a defendant be given clear notice of the charges against him .... A defendant should not have to guess which charges have been placed against him. If the charges in an indictment [or information] are not clear and explicit a defendant cannot properly defend against them. Commonwealth v. Wolfe, 220 Pa.Super. 415, 419, 420, 289 A.2d 153[, 155] (1972).”
Accord Commonwealth v. Diaz, 477 Pa. 122, 124, 383 A.2d 852, 854 (1978); see generally Hackney v. United States, D.C.App. 389 A.2d 1336, 1341 (1978).

Based on the aforesaid, in determining the sufficiency of an Information or Indictment, the salient points to be considered are, first, whether it contains the elements of the offense intended to be charged, and sufficiently apprises the accused of what he must be prepared to meet; secondly, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. See Russell v. United States, 369 U.S. 749, 763-764, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962) (citing cases); Commonwealth v. Rolinski, 267 Pa.Super. 199, 406 A.2d 763 (1979).

In accordance with Pa.R.Crim.P. 225(b)(5), and the first prong in Russell, one observes that the essential elements necessary to prove one guilty of Escape consists of establishing that the accused: 1) unlawfully removed himself from official detention; or 2) failed to return to official detention following temporary leave granted for a specific purpose or limited purpose. 18 Pa.C.S.A. § 5121(a). Consistent with the preceding, the prosecution set forth in the First Count of the Information only those essential elements necessary to find the appellant guilty of Section 5121(a), which placed him on notice of the offense being charged. As a result, I find the fact that the First Count “is silent on the grade of the offense” not to be inimical to the validity of the Information, such that the sentence imposed by the trial court for the felony conviction is vitiated. See Bannon v. United States, 156 U.S. 464, 15 S.Ct. 467, 39 L.Ed. 494 (1895) (indictment not fatally defective for failing to state that the crime charged was “feloniously” committed, since such term was not a part of the description of the offense in the statute); see also Pa.R.Crim.P. 225(c). Although the prosecution should plead the matters that affect the severity of the offense, those additional matters do not establish the perimeters of the offense nor define the basic crime with respect to what is necessarily included therein. See, e.g., State v. Luce, Me., 394 A.2d 770 (1978). Such position is in accord with Judge SPAETH’s statement in Commonwealth v. Stanley, 265 Pa.Super. 194, 401 A.2d 1166 (1979), which was “embrace[d]” by the Court en banc therein, id., 265 Pa.Super. at 201, 401 A.2d 1170, that:

“the elements of the crime of escape are set out, not in § 5121(d) [—the grading section], but in § 5121(a):
(a) Escape.—A person commits an offense if he unlawfully removes himself from official detention following temporary leave granted for a specific purpose or limited period.
.... The grading section . . . does not add or subtract to this definition of the crime but only defines its severity, as a felony or misdemeanor. Compare Commonwealth v. McKennion, 235 Pa.Super. 160, 340 A.2d 889 (1975) (for theft offenses, under the Crimes Code, supra, § 3903, valuation of stolen goods is not element of crime, but controls grading of offense only (HOFFMAN and SPAETH, JJ., dissented)).” Id., 265 Pa.Super. at 219, 401 A.2d at 1179. Accord Commonwealth v. Jones, 491 Pa.Super. 289, 420 A.2d 1046 (1980).

Here, the record shows that the appellant, while serving a term of imprisonment, filed a petition for reconsideration of sentence. A hearing date was set; and, while the appellant was waiting in the courtroom for the proceedings to begin, he escaped. Appellant was apprehended, and in the course thereof a deputy sheriff was injured. (N.T. 1/3/80, at 2-4) The trier of fact, upon hearing all the evidence, found the operative elements as outlined above to have been satisfied, and returned a verdict of guilty. See generally Commonwealth v. Brown, 261 Pa.Super. 240, 396 A.2d 377 (1978).

It seems to this jurist that had the Legislature intended to make the grading of the offense of Escape one of its substantive or operative elements, it would not have divided the definition of the offense and the grading of the offense into distinct and separately labeled subsections. See, e.g., Commonwealth v. Coleman, 289 Pa.Super. 221, 433 A.2d 36 (1981). Additionally, the interpretation advanced by the Majority is a strained and an unreasonable one. That is, it necessarily leads one to conclude that henceforth the “grading” section of the Escape statute is to be considered an element of the offense, such that “if an indictment or information fails to set forth the degree of the offense, a conviction for escape must be graded as a misdemeanor of the second degree[,]” and no higher. (At 133) With such conclusion, I cannot agree.

The Majority cites in support of its proposition Commonwealth v. Herstine, 264 Pa.Super. 414, 399 A.2d 1118 (1979) and Commonwealth v. Longo, 269 Pa.Super. 502, 410 A.2d 368 (1979).

In Herstine, this Court noted that imposition of an enlarged sentence was conditioned upon the indictment or information containing averments of prior convictions. The rationale being, “[s]ince a second offense [under the Retail Theft statute] carries a greater penalty than a first offense, it ‘is different in kind and character from a first offense.’ Hence, an indictment [or information] must plead the peculiar characteristics which distinguished it from the first offense.” (Citations omitted) Id. 264 Pa.Super. at 416, 399 A.2d at 1119. I take no issue with the preceding tenet, which was adhered to in Commonwealth v. Longo, supra.

However, instantly, unlike in Herstine and Longo, we are not dealing with a recidivist statute which exposes the accused to the possibility of an increased sentence solely because he is a repeat offender. Rather, the sentence to be imposed for Escape is dictated by the circumstances attendant to the proscribed act, and not the repetitive nature with which the offense is committed. In other words, notwithstanding the number of times a person is convicted of Escape, the operative (“essential”) elements of the crime to be established at trial remain the same. If such were not so, and the accused was exposed to the possibility of an increased sentence merely for being a repeat offender, one could see the need for the charging document to contain information that the accused had been convicted of prior offenses, so as to put him on notice of the severity of the crime for which he was being charged, and therefore of the potential sentence that could be imposed. See Commonwealth v. Coleman, supra. The case at bar, however, does not present such a situation. Thus, given the fact that the prosecution satisfied the purpose of an Information by providing the accused with sufficient notice to prepare a defense, and therefore ensured him that he would not be placed twice in jeopardy, I fail to see how the charging document was facially defective simply because it failed to grade the offense a felony. See generally Commonwealth v. Rolinski, supra.

The Chapter of the Crimes Code captioned Theft and Related Offenses, and the offenses listed therein, (18 Pa.C. S.A. §§ 3921-3931) is analogous to the Escape statute. In the case of theft, the value of the property need not be listed on the Information because it is not considered an essential element of the offense. See Commonwealth v. Farmer, 244 Pa.Super. 334, 368 A.2d 748 (1976); Commonwealth v. McKennion, supra. Likewise, the facts mitigating or aggravating a charge of Escape, which appear in the grading section, are not considered elements of the crime. Commonwealth v. Stanley, supra. Quite the contrary, the circumstances attendant to an escape, as with the value of stolen property, become relevant only to establish the grade of the offense for purposes of imposing sentence. Commonwealth v. Stanley, supra; Commonwealth v. Farmer, supra; Commonwealth v. McKennion, supra.

Consequently, finding the Information herein proper in all respects see Commonwealth v. Howard, 248 Pa.Super. 246, 251, 375 A.2d 79, 82 (1977) (“It is clearly the law of this Commonwealth that indictments drawn in the language of the criminal statute are legally sufficient.” [Citations omitted]), I would uphold the validity of the sentence imposed; to do otherwise, is to elevate the “grading” section of the Escape statute from a factor to be considered at the time of sentencing, to an essential element of the offense. The Majority’s ruling being to the contrary, I respectfully dissent.

      . The second and third counts of the indictment state: Second Count—That on the same day and year, in Philadelphia County, REGINALD MCNEILL feloniously did remove himself from official detention or fail to return to official detention following temporary leave granted for a specific purpose or limited period, the said defendant being under arrest for or detained on a charge of felony or following conviction of crime.
      Third Count—That on the same day and year, in Philadelphia County, REGINALD MCNEILL feloniously did remove himself from official detention or fail to return to official detention following temporary leave granted for a specific purpose or limited period, the said defendant employing force, threat, deadly weapon or other dangerous instrumentality to effect the escape.

      . The sentencing court is directed to place on the record its reasons for the sentence it imposes on appellant. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977).

      . Section (c) of Rule 225 provides: “The information shall contain the official or customary citation of the statute and section thereof, or other provision of law which the defendant is alleged therein to have violated; but the omission of or error in such citation shall not affect the validity or sufficiency of the information.” (Emphasis added) If such be the case, then it is incongruous to state that, absent a listing on the face of the charging document of the “grade” —e.g., “official or customary citation of the statute and section”—of the offense alleged to have been committed, the accused can be imprisoned for no more than the minimum sentence provided for under the particular statute violated. Since the “grading” section of the Escape statute has not been equated with the essential elements of the offense, see Commonwealth v. Stanley, infra, its absence from the face of the charging document should not, a fortiori, taint the propriety of the sentence imposed.


author: CAVANAUGH, Judge:

text:
    439 A.2d 136
    COMMONWEALTH of Pennsylvania, v. Richard ELLISON, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 21, 1980.
    Filed Dec. 18, 1981.
    Petition for Allowance of Appeal Denied May 25, 1982.

      Arthur J. King, Assistant Public Defender, Norristown, for appellant.

      Ronald T. Williamson, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before PRICE, CAVANAUGH and WATKINS, JJ.
   CAVANAUGH, Judge:

Defendant appeals from a sentence of confinement imposed after the court found him in violation of his probation for the second time. The defendant argues that the lower court committed various sentencing errors. We affirm.

In August, 1974 the defendant pled guilty to burglary, larceny, receiving stolen goods, and conspiracy to commit burglary; the Commonwealth nol pressed other charges against him. As a result he was sentenced to five years’ probation.

In December, 1977 after a hearing defendant was found to have violated his probation since he had been convicted of another offense. The court once again sentenced the defendant to five years’ probation; it also ordered the defendant to undergo inpatient therapy for drug addiction.

In August, 1979 the court, after a hearing, found the defendant had once again committed a crime during probation. At the hearing it was shown that he had been arrested and charged with burglary, theft, receiving stolen property, conspiracy, possession of an instrument of a crime, and criminal mischief, but had not yet been tried on those charges. Based on the testimony produced at the hearing the court concluded that the defendant had committed a crime while on probation. It appeared to the court that the defendant had broken into a drug store, had fled after the alarm had sounded and had been apprehended in the vicinity of the crime.

After the hearing the court revoked probation and imposed a term of imprisonment of two to five years. Subsequently the defendant timely filed a petition for modification of sentence. The petition was denied and this appeal followed.

Defendant argues that the sentencing record fails to show that the court considered the “five sentencing alternatives and the factors that weigh in favor of each.” See 42 Pa.C.S.A. § 9721. Appellant’s brief 9. He also argues that in revoking probation and imposing confinement the court failed to make the findings required by 42 Pa.C.S.A. § 9771(c). The Commonwealth argues that these issues have been waived since they were not raised in defendant’s petition for modification of sentence. We agree that these issues have been waived.

Pa.R.Crim.P. 1410 requires that a motion to modify a sentence be in writing and be filed within ten days after imposition of sentence. The comment to Rule 1410 states that “[t]his rule provides a procedure whereby a motion to modify sentence must be raised in the first instance before the sentencing court, thereby giving that court the first opportunity to modify the sentence.” (Emphasis added). Moreover, Pa.R.Crim.P. 1405(c) requires, inter alia, that the judge at the time of sentencing advise the defendant that he has the right to challenge the propriety of his sentence, and that only claims raised in the lower court may be raised on appeal. Read together these rules require that challenges to the propriety of a sentence must be raised in the lower court or the claim will be waived on appeal. These rules reflect the principle that the lower court should be given the opportunity to correct its errors and these rules are in accord with the rule that “[ijssues not raised in the lower court are waived and cannot be raised for the first time on appeal.” Pa.R.A.P. 302. Finally, numerous cases have held that failure to raise particular issues at the time of sentencing or in a motion to modify sentence results in waiver on appeal. E.g., Commonwealth v. Collins, 492 Pa. 405, 424 A.2d 1254 (1981); Commonwealth v. Anderson, (682 Phila. 1980, J-1/1981, 1981) (collecting cases); Commonwealth v. Morris, 273 Pa.Super. 477, 417 A.2d 748 (1979) rev’d on other grounds 492 Pa. 565, 424 A.2d 1336 (1981).

In the instant case the petition to modify the sentence stated in pertinent part that “[counselors have recommended that the petitioner continue his participation in the drug addiction program.” This statement is insufficient to inform the lower court that it erred by not considering the “five sentencing alternatives and the factors that weigh in favor of each” thus that issue is not preserved for appeal.

The above-quoted statement from the petition to modify is also insufficient to inform the lower court that it erred by failing to make the findings required by 42 Pa.C.S.A. § 9771(c). Nevertheless our analysis does not end there. It may be argued that the imposition of a sentence of total confinement when there are no findings required by 42 Pa.C.S.A. § 9771(c) is an illegal sentence. If a sentence is illegal, it may be that the issue is not waived for failing to raise it in the lower court. If we assume arguendo that an issue of illegal sentence is not waived, we must consider whether the judge’s failure to make the findings required by 42 Pa.C.S.A. § 9771(c) rendered the sentence of total confinement illegal.

In the instant case the revocation hearing contains evidence from which the judge could have made one of the findings required by 42 Pa.C.S.A. § 9771(c). Specifically the judge could have found that the defendant would be likely to commit another crime or that total confinement was essential to vindicate the authority of the court. We hold that when the record contains evidence from which the judge could have made the findings required by 42 Pa.C.S.A. § 9771(c), the judge’s failure to expressly make such findings will not render a sentence of total confinement illegal. Since the sentence was not illegal in this respect, the defendant was obliged to raise this issue in his motion to modify.

Although we hold that two of defendant’s claims are waived, we shall consider the merits of defendant’s claim that the sentence was harsh and excessive. We consider this argument only in light of defendant’s statement in the motion to modify his sentence that counselors have recommended his continued participation in the drug addiction program.

The imposition of a proper sentence is a matter vested in the sound discretion of the trial court. Commonwealth v. Edrington, 490 Pa. 251, 416 A.2d 455 (1980). Moreover the sentence imposed must be the minimum punishment consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant. Commonwealth v. Edrington, supra; 42 Pa.C. S.A. § 9721(b).

In the instant case the defendant was given probation twice for the same offense. The court had placed the defendant on probation initially, and also a second time when it permitted probation despite the defendant’s first violation of probation by his conviction for a drug-related offense. In the instant violation of probation the court found the defendant’s burglary of a drugstore indicated that he still had a problem with drugs and that he was not satisfactorily progressing in the drug program. In these circumstances we cannot say that the judge abused his discretion by failing to follow the recommendation of drug counselors that the defendant continue in the program, and by implication, be free from imprisonment; the judge was not obliged to follow the counselors’ recommendation.

Order affirmed.

PRICE, J., did not participate in the consideration or decision of this case.

      . The petition for a hearing and request for issuance of a bench warrant alleged that the defendant was arrested for a violation of the “Controlled Substance Drug Device and Cosmetic Act” and for receiving stolen goods. Appellee alleges in its brief that the defendant pled guilty to a violation of the Drug Act.

      . 42 Pa.C.S.A. § 9771(c) provides:
      (c) Limitation on sentence of total confinement.—The court shall not impose a sentence of total confinement upon revocation unless it finds that:
      (1) the defendant has been convicted of another crime; or
      (2) the conduct of the defendant indicates that it is likely that he will commit another crime if he is not imprisoned; or
      (3) such a sentence is essential to vindicate the authority of the court.
      This section was previously found in 18 Pa.C.S.A. § 1371(c).

      . It is not clear whether at the present time failure to raise the claim that a sentence is illegal in a motion to modify the sentence results in waiver on appeal. Before Pa.R.Crim.P. 1410 was effective, certain claims of illegal sentence were not waived for failure to present the issue in the lower court. E.g., Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976); Commonwealth v. Albertson, 269 Pa.Super. 505, 410 A.2d 815 (1979); Commonwealth v. Turner, 265 Pa.Super. 486, 402 A.2d 542 (1979); Commonwealth v. Guenzer, 255 Pa.Super. 587, 389 A.2d 133 (1978); Commonwealth v. Reynolds, 256 Pa.Super. 259, 389 A.2d 1113 (1978); Commonwealth v. Betoni, 254 Pa.Super. 26, 385 A.2d 506 (1978).
      However, Pa.R.Crim.P. 1410 may require all challenges to a sentence, including claims of illegality, to be raised in a motion to modify sentence. As we have discussed earlier in this opinion when Pa.R. Crim.P. 1410 and 1405(c) are read together they require that chailenges to the propriety of a sentence must be raised in the lower court or the claim will be waived on appeal. Thus the question becomes whether the term “propriety” used in Pa.R.Crim.P. 1405(c) includes illegality. There is conflicting authority on this point. Pa.R.Crim.P. 1410 was promulgated in response to the Supreme Court’s decision in Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140, 151 (1977). In Riggins the court held that the judge must state his reasons for imposing sentence and the court stated that “a defendant who seeks to challenge the propriety of his or her sentence should first present his or her claim to the trial court.” Id., 474 Pa. at 136, 377 A.2d at 151. In a concurring and dissenting opinion in Riggins, Justice Pomeroy suggests that propriety does not include illegality. Id., 474 Pa. at 139 n.4, 377 A.2d at 152 n.4. Other authority, however, suggests that propriety does include illegality. At one time Pa.R.Crim.P. 321 provided, inter alia, when there is a guilty plea, challenges to the legality of the sentence must be made in the lower court within ten days. When Pa.R.Crim.P. 1410 was first promulgated this provision of Pa.R.Crim.P. 321 was deleted. Our Supreme Court has interpreted the deletion to Pa.R.Crim.P. 321 and the simultaneous promulgation of Pa.R.Crim.P. 1410 to mean that “[ajttacks upon the legality of the sentence was provided for under [Pa.R. Crim.P.] 1410 ... thus rendering the reference to such attacks in rule [Pa.R.Crim.P.] 321 superfluous. Commonwealth v. Higgins, 492 Pa. 343, 347 n.3, 424 A.2d 1222, 1224 n.3 (1980).
      Moreover, the idea that challenges to the legality of the sentence must be made on the lower court is not new. Before Pa.R.Crim.P. 1410 was effective we stated that challenges to the legality of the sentence should be made in the lower court. Commonwealth v. Brunner, 243 Pa.Super. 55, 364 A.2d 446 (1976). Because of the conflicting views it is not clear whether failure to raise the claim that the sentence is illegal in a motion to modify a sentence results in waiver on appeal. As we discuss in the text we need not and do not decide this issue.

      . We also note that the defendant failed to include this issue in his statement of matters complained of on appeal.” See Pa.R.A.P. 1925(b). Thus we do not have the benefit of the lower court’s opinion on this issue.


text:
    439 A.2d 140
    David SALATINO v. PENNSYLVANIA NURSES ASSOCIATION, Appellant.
    Superior Court of Pennsylvania.
    Argued June 12, 1980.
    Filed Dec. 18, 1981.

      Michael I. Levin, Harrisburg, for appellant.
    John Solt, Allentown, submitted a brief on behalf of appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   CAVANAUGH, Judge:

The question presented in this appeal is whether the common pleas court has subject matter jurisdiction over a case involving an alleged breach of a union’s duty of fair representation of its member or whether such jurisdiction is preempted by The National Labor Relations Act (NLRA) as amended, 29 U.S.C.A. § 141 et seq. We hold that the common pleas courts of Pennsylvania do have jurisdiction and therefore we affirm the lower court order dismissing appellant’s preliminary objection.

Appellee, David Salatino, was employed by Easton Hospital in Easton, Pennsylvania as a full-time registered nurse until he was discharged in December, 1977 for allegedly endangering the life of a patient by unsafe nursing practice. Appellee was at that time a member of The Pennsylvania Nurses Association, which was the recognized exclusive collective bargaining representative of nurses employed by Easton Hospital. Pursuant to the collective bargaining agreement between appellant association and Easton Hospital, appellee sought appellant’s aid in instituting a grievance proceeding against the hospital for wrongfully terminating his employment. Appellee alleges that appellant assured him it would pursue the grievance on his behalf, but that after the prescribed time period for filing the grievance had expired, it notified him that it had decided not to proceed with his claim.

Appellee subsequently filed, in the Court of Common Pleas of Northampton County, a complaint in trespass alleging that appellant breached its duty of fair representation by acting arbitrarily and in bad faith in failing to pursue his grievance. Appellant filed preliminary objections alleging, inter alia, that jurisdiction over the cause of action was vested exclusively in the federal courts or The National Labor Relations Board (NLRB). It is from the lower court’s dismissal of appellant’s preliminary objection in the nature of a petition raising a question of jurisdiction that this appeal is taken.

The leading case in the area of federal preemption under the NLRA is San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). In that case the Supreme Court held that the NLRB had exclusive jurisdiction over suits concerning any activity which was “arguably subject” to § 7 or § 8 of the NLRA. Id. at 245, 79 S.Ct. at 780, 3 L.Ed.2d at 783.

The basic Garmon preemption doctrine giving the NLRB exclusive jurisdiction over suits alleging an unfair labor practice is still valid but several exceptions to the doctrine have since been established. One of these exceptions was created in the landmark case of Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), where the Supreme Court held that state and federal courts had concurrent jurisdiction over suits involving a breach of the duty of fair representation, even though such a breach might constitute an unfair labor practice. As the court stated:

A primary justification for the pre-emption doctrine— the need to avoid conflicting rules of substantive law in the labor relations area and the desirability of leaving the development of such rules to the administrative agency created by Congress for that purpose—is not applicable to cases involving alleged breaches of the union’s duty of fair representation.

Id. at 180-81, 87 S.Ct. at 911-12, 17 L.Ed.2d at 852. The court concluded that “the unique role played by the duty of fair representation doctrine in the scheme of federal labor laws . . . render[s] the Garmon pre-emption doctrine inapplicable.” Id. at 188, 87 S.Ct. at 915, 17 L.Ed.2d at 857.

Pennsylvania appellate courts have not exercised jurisdiction in a case alleging a breach of the duty of fair representation since the Vaca decision but our reading of the cases indicates that they would do so given appropriate circumstances.

In its first opportunity to address the preemption issue after Vaca our Supreme Court, while recognizing the exception established in Vaca, concluded that the Garmon preemption doctrine still applied in the circumstances presented. Lay v. International Brotherhood of Electrical Workers, Local No. 174, 427 Pa. 387, 235 A.2d 402 (1967). Lay involved picketing by a union of a non-union construction site. The supreme court, in reversing the lower court’s decree enjoining the picketing, concluded that the issue of the legality of the picketing was arguably within the jurisdiction of the NLRB and that the federal preemption doctrine therefore applied. The court stated:

Appellees rely on a case decided this past term by the Supreme Court, Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), as indicating that, with a multitude of decisions for state courts to follow, federal preemption is no longer a requisite, and should yield more often to state jurisdiction. We cannot degree that such was the import of that case. We read it as saying merely that in the special realm of violations of the duty of fair representation, . . .
the state court may retain jurisdiction. The instant case presents none of the special circumstances of Vaca v. Sipes,

Id., 427 Pa. at 394, 235 A.2d at 405-06. Thus the court clearly acknowledged the Vaca exception, but also recognized that the exception was limited to cases involving a breach of the duty of fair representation.

This court recently recognized the Vaca exception to the preemption doctrine in Schena v. Smiley, 265 Pa.Super. 249, 401 A.2d 1194 (1979), aff’d 488 Pa. 632, 413 A.2d 662 (1980). The appellees in Schena had filed an action in trespass against a union alleging wilful or negligent conduct in failing to include appellees as plaintiffs in a previous action in which the NLRB had ordered the plaintiff employees reinstated and awarded back pay. In addressing the issue of the lower court’s jurisdiction, we stated:

the rule of Garmon has been held not to apply where the action is brought for a violation of a collective bargaining agreement under sections 301 and 303 of the Labor Management Relations Act of 1947, see Smith v. Evening News Assoc., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962), or where the action is against a union for breach of its statutory duty of fair representation, see Motor Coach Employees v. Lockridge, 403 U.S. 274 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971); Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). These exceptions, however, do not help appellees, for the present action does not fit within any of them.

Id., 265 Pa.Super. at 255, 401 A.2d at 1197 (emphasis added). The court reasoned that the appellees’ action was not within the Vaca exception because that exception only applies to breaches of a union’s duty of fair representation and appellees were not members of the union. Appellees had made no argument that the Vaca exception applied to them and had apparently admitted that the union had no statutory duty to process their claim before the NLRB. Id., 265 Pa.Super. at 256 n.11, 401 A.2d at 1197 n. 11.

The instant appeal, on the other hand, falls squarely within the preemption exception established in Vaca v. Sipes and given recognition by this court and by the Pennsylvania Supreme Court in Lay and Schena. Appellee was a member of appellant association and appellant did have a statutory duty to fairly represent appellee. Appellee alleged in his complaint that appellant breached this duty by acting arbitrarily and in bad faith in failing to pursue appellee’s grievance. Thus the lower court was correct in concluding that it had subject matter jurisdiction in the instant action.

Order dismissing preliminary objection affirmed.

      . This court has jurisdiction over the instant interlocutory appeal pursuant to the Act of March 5, 1925, P.L. 23, § 1, 12 P.S. § 672, which permitted an appeal from all orders involving questions of jurisdiction as if they were final judgments. See McCrory Corp. v. Girard Rubber Corp., 225 Pa.Super. 45, 307 A.2d 435 (1973), aff'd 459 Pa. 57, 327 A.2d 8 (1974). Effective June 27, 1980, 12 P.S. § 672 was repealed. Act of April 28, 1978, P.L. 202, No. 53, § 2(a) [1069]; 42 P.S. § 20002(a) [1069]. However, jurisdiction of this court over the instant appeal is not affected because the notice of appeal was filed on January 23, 1980, before the effective date of the appeal of § 672. See Gallardy v. Ashcraft, 288 Pa.Super. 37, 39 n.3, 430 A.2d 1201, 1202 n.3 (1981).


author: MONTEMURO, Judge:

text:
    439 A.2d 142
    COMMONWEALTH of Pennsylvania, v. Robert HANKINS, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 22, 1981.
    Filed Dec. 18, 1981.
    Petition for Allowance of Appeal Denied March 26, 1982.

      Louis Lipschitz, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and WATKINS, JJ.
   MONTEMURO, Judge:

This is an appeal from an order denying relief under the Post-Conviction Hearing Act. Appellant’s sole contention on appeal is that trial counsel was ineffective for failing to file a pre-trial motion to suppress a statement made by appellant to the police prior to receiving his Miranda warnings. We find no merit in appellant’s argument and accordingly affirm the order of the court below.

On October 20, 1975, appellant was tried with two co-defendants in a non-jury trial and convicted of robbery, possession of an instrument of crime, carrying a firearm in a public place, carrying a firearm without a license, and criminal conspiracy. Post-verdict motions were denied and appellant was sentenced to five (5) to ten (10) years imprisonment for robbery. Sentence was suspended on the other charges. Appellant filed a direct appeal to the Superior Court which affirmed his conviction. Commonwealth v. Hankins, 251 Pa.Super. 137, 380 A.2d 415 (1977). The Supreme Court denied allocatur on April 4, 1978.

The facts of the case are as follows:

On July 14, 1975, police responded to a radio call that three black males with shotguns were seen on the corner of 6th Street and Indiana Avenue in Philadelphia. Upon arriving there, the police found an armed robbery in progress at Herb’s Bar. Shortly before, three black males had entered Herb’s Bar. Brandishing weapons, the robbers told the people in the bar that this was a “stick up” and to get on the floor. The men then took cash from the bar owner and his patrons. Before the robbers could leave, the police arrived.

When the police tried to enter the premises, they found the front door was blocked, but they were able to see that the robbery victims inside were lying on the floor, including a woman and a baby. One officer went to the rear of the building where he observed appellant “peeping” out a window from inside the bar. When the police announced their presence, appellant came out with his hands raised and told the police that the other two men were still inside the bar.

It is this statement to the police that appellant contends should have been suppressed. The admissibility of this evidence is controlled by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and its progeny. Miranda prohibits the introduction of statements by the defendant which are the product of custodial interrogation unless proper procedural safeguards are effected to secure the privilege against self-incrimination. The prophylactic warnings required by the rule are the result of the recognition that custodial interrogation is inherently coercive. An interpretation of Miranda should, therefore, be consistent with the underlying purpose of preventing coercive police conduct in the elicitation of incriminating statements by a defendant.

In the case before us, appellant came out of the bar with his hands up. It is disputed whether handcuffs were placed on him before or after the question was addressed to him. However, we conclude from the testimony that his freedom of action was restrained and he was therefore in custody. Nevertheless, custody alone does not necessitate the reading of Miranda warnings. Miranda has not been interpreted to exclude responses to all questions. (Emphasis added). The Supreme Court of Pennsylvania has stated: “It is simply not custody plus ‘questioning’ as such which calls for Miranda safe-guards, but custody plus police conduct calculated to, expected to, or likely to, evoke admission.” Commonwealth v. Simala, 434 Pa. 219, 226, 252 A.2d 575, 578 (1969). Consistent with this interpretation, Pennsylvania Courts have allowed responses for routine information. See Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974). (Defendant walked into a police station and confesses. Police could ask clarifying questions without giving warnings). See also Commonwealth v. Allen, 239 Pa.Super. 83, 361 A.2d 393 (1976) (Police may ask questions to gather routine personal data).

The case before us does not exhibit the characteristics of these two exceptions. Yet, we regard this factual situation as one in which the necessity to give Miranda warnings is far less compelling. Under the circumstances of this case, where the police came upon a robbery in progress, where they saw patrons, including a woman and a baby, lying on the floor, where they knew that the robbers were three black males with guns, and where appellant, after peeping out a window from the rear of the bar, came out with his hands over his head, it would be absurd to conclude that the police asked the question “where are the others?” for the purpose of eliciting evidence that appellant had committed a crime.

Where a question is necessary to insure the safety of bystanders or police officers, and time is a crucial factor, we feel that there is a sufficient state interest to override the necessity of reading Miranda warnings. As was the case in Commonwealth v. Yount, supra, on the record it cannot be said that the challenged police inquiry was conduct calculated to, expected to, or likely to, elicit an incriminating response. Our rationale in this case is similar to that used in United States v. Castellana, 500 F.2d 325 (5th Cir. 1974). In that case, F.B.I. agents, pursuant to a valid search warrant broke into a gambling establishment. One of the agents, who was assigned to search Castellana, took him into a back room but did not arrest him. Castellana then consented to a search of his person. Another agent then asked Castellana if he had any weapon within reach to which Castellana responded in the affirmative, pointing to a drawer in a nearby desk. The agent seized four handguns from that drawer. Castellana contended that his response to that question should have been excluded because he had not been advised of his Miranda warnings. The Court, in denying Castellana’s contention stated:

The safety of the operation was Arwine’s primary concern, he testified, and the very form of his first inquiry— weapons within reach—shows it was limited to this proper concern. ... Nor is there any indication of devious intent by the agents to achieve an investigatory end by means of masquerading as security measures: such activities might be made short work of. Id. 500 F.2d at 326.

The majority in Castellana determined that the concern about safety was a legitimate reason relieving the necessity of Miranda warnings. The dissent in that case disputed the perception of the majority about the dangerousness of the situation, stating that the agents did not actually feel physically threatened. The case before us does not present this problem. No one could dispute the obvious peril to the officers and the bystanders.

We, therefore, conclude that the statement made by appellant was admissible and that a motion to suppress would have been without merit. Accordingly, counsel was not ineffective. See Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

The order of the lower court is affirmed.

      . Act of January 25, 1966, P.L. (1965) 1580, 19 P.S. § 1180-1, et seq.

      . 18 Pa. C.S.A. 3701.

      . 18 Pa. C.S.A. 907.

      . 18 Pa. C.S.A. 6108.

      . 18 Pa. C.S.A. 6106.

      . 18 Pa. C.S.A. 903.

      . The officer who actually saw appellant peeping out from a window in the rear of the bar and who was there when appellant came out with his hands over his head, testified that appellant volunteered the statement sought to be suppressed. The fellow officer who was not there when appellant exited from the bar, testified that the statement sought to be suppressed was a response to the police officer’s question “where are the others?”. The testimony of the officers also varied as to when the handcuffs were placed on appellant. The testimony of the officer who was directly at the scene is certainly more credible. However, at the appellate level, we may not decide questions of credibility. Therefore, for the purpose of this opinion, we will assume that appellant’s statement was a response to a question posed by the officer and that appellant was in custody at the time of that response.

      . In Harryman v. Estelle, 616 F.2d 870. (5th Cir. 1980) cert. denied 449 U.S. 860, 101 S.Ct. 161, 66 L.Ed.2d 76 (1980). The Court stated that where there is a sufficient compelling noninvestigatory purpose for asking a question, it will be allowed.


author: VAN der VOORT, Judge:

text:
    439 A.2d 145
    COMMONWEALTH of Pennsylvania v. Nick FOLINO, Appellant. COMMONWEALTH of Pennsylvania v. Theodies HOPSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 16, 1980.
    Filed Dec. 18, 1981.
    Petition for Allowance of Appeal Denied April 2, 1982.

      Lester G. Nauhaus, Public Defender, Pittsburgh, for appellants.
    Leo M. Dillon, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CAVANAUGH, HOFFMAN and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

Appellants are co-defendants. Appellant Folino, by Information No. CC7607095A was charged with Criminal Conspiracy, Simple Assault, Rape, and Corruption of Minors. Appellant Hopson, by Information No. CC7607096A was charged with Criminal Conspiracy, Simple Assault, Kidnapping, two (2) counts of Rape, and Corruption of Minors. Appellants proceeded to trial jointly. At the first trial, a mistrial was granted on motion of defense counsel. Appellants again proceeded jointly to trial for a second time. A jury found Folino guilty of rape and corruption of minors; he was acquitted of the other charges. Hopson was adjudged guilty of simple assault, one (1) count of rape, and corruption of minors; he was acquitted of the other charges. Post verdict motions were denied. Both appellants were sentenced to a term of five (5) to ten (10) years imprisonment on the rape convictions, sentences were suspended on the other convictions. Both appellants have appealed to this Court; their appeals have been consolidated for our review.

A brief summary of the factual history of this case is helpful. Virginia, age fourteen (14) and Andrea, age fifteen (15) ran away from their home in McKeesport. The two girls made their way to Point Park in Pittsburgh, where they were approached by appellant Folino. After buying the girls something to eat, and after Folino made several phone calls, the three walked to the North Side. On the North Side, the girls were forced into a car driven by Hopson. A third male was picked up and the girls were driven to a house where they were raped. The group then drove to the downtown area where Andrea was, able to escape. Virginia was taken to another apartment by the two appellants, where she remained until escaping five days later.

A separate brief has been filed by counsel for each appellant. These briefs each raise four arguments, each argument will be discussed jointly in part A, as the briefs are basically identical for review purposes. Additionally, appellant Hopson has filed a brief pro se. While the Commonwealth does not address itself to the pro se brief, we must nonetheless review its contents. We shall first consider the attorney filed briefs and then discuss the pro se arguments in part B.

A

I. Did the court err in permitting Andrea to be removed from the witness stand for rehabilitation by a rape crisis center representative?

During the direct examination of Andrea, the witness appeared to be having difficulty in relating the incident to the court and jury. The trial judge asked the prosecuting attorney whether he wished to talk with the witness before continuing. The assistant district attorney conferred with the witness for about four minutes outside of the court room. During this four minute interval a rape crisis center counselor talked with the witness. The witness then took the stand and continued with her testimony. Appellant claims this procedure was improper.

We need not discuss the merits of such contention since appellant has not properly preserved it for review. Neither appellant objected at that time to the court’s excusing the witness for those four minutes. Counsel for appellant Folino completed his cross examination without ever questioning the four minute conference. Counsel for Hopson, after the co-defendant had concluded his cross examination, and after a brief recess then moved for a mistrial, which the court denied. Counsel for Hopson then went on to cross examine the witness. Cross examination revealed the witness had talked with the volunteer from the Rape Crisis Center. Appellant Hopson did not renew his motion for a mistrial.

Case law in this jurisdiction has consistently held that the cornerstone of our waiver doctrine is that issues below not raised in a timely manner are foreclosed for purposes of appellate review. Commonwealth v. Pritchett, 468 Pa. 10, 359 A.2d 786 (1976). In the vast majority of cases, the rubric “in a timely manner” requires contemporaneous objection; and our rules and cases rigorously enforce the contemporaneous objection rule. See, e.g., Commonwealth v. Chuck, 227 Pa. Superior Ct. 612, 323 A.2d 123 (1974); Pa.R.Crim.P. 1119(b); Pa.R.A.P. 302.
Commonwealth v. Griffin, 271 Pa.Superior Ct. 228, 412 A.2d 897 (1980).

Neither appellant objected to the Commonwealth’s mid-examination conference with the victim until well after such conference. Nor can the appellants claim that their objection goes to the involvement of the Rape Crisis Center. No objection was made when appellants became aware that the witness may have conversed with someone other than the district attorney. Accordingly, we may not review this claim as appellants have failed to preserve it with a timely objection.

II. Did the court become an advocate for the Commonwealth by examining a prosecution witness and refusing to permit defense counsel to further cross examine such witness?

After the Commonwealth and both appellants had completed their questioning of Andrea (including re-direct and re-cross), the trial judge proceeded to ask the witness several questions. The court inquired as to whether the witness was afraid to testify. The court then succinctly questioned the witness concerning the criminal incident.

Q As I understand your statement, you say you have been—you had sexual intercourse with both of these Defendants on that day?
A Yes.
Q And it was against your will?
A Yes.
Q And it took place in that building over on the North-side?
A Yes.
Q All right. Now, looking at both of these Defendants, are they the individuals who were with you on that day?
A Yes.
Q Is there any doubt in your mind that they are the individuals who were with you in that building on the Northside, where you say you were, where you had sexual intercourse with them against your will?
A Those are the two guys.
Q These are the two individuals?
A Yes.

(N.T. pp. 185-86)

The court also delved into the short conference with the Rape Crisis Center volunteer. The court would not permit trial counsel for appellant Folino to further cross examine the witness. Appellants claim the court erred both in questioning the witness and in denying cross examination.

A trial judge must be ever cautious that his questioning of witnesses not show bias or a belief in the credibility of particular witnesses. Commonwealth v. Miller, 442 Pa. 95, 275 A.2d 328 (1971). However, a trial judge has the inherent right, and, at times, the duty to question witnesses to clarify existing facts and to elicit new information. Commonwealth v. Brown, 438 Pa. 52, 63, 265 A.2d 101 (1970). Where these are the objectives of the questioning and it is not unduly protracted or conducted in a biased manner, the trial judge’s discretion in questioning witnesses will not be found erroneous. Commonwealth v. Gockley, 411 Pa. 437, 192 A.2d 693 (1963).

Commonwealth v. Lanza, 228 Pa.Superior Ct. 300, 303, 323 A.2d 178 (1974).

In the current case, after protracted direct examination, cross examination, redirect, and recross examination, the trial court consumed two pages of testimony. As noted previously, the witness had difficulty in clearly responding to the questions put to her. In this circumstance it was proper for the court to question her. Commonwealth v. Smith, 227 Pa.Superior Ct. 355, 324 A.2d 483 (1974). Nor, was the court’s inquiry into the witness’ difficulty in testifying improper even though she indicated she had been threatened. Apparently such response was unexpected. See: Commonwealth v. Hodge, 246 Pa.Superior Ct. 71, 369 A.2d 815 (1977). Furthermore, appellants did not object at that time. See Commonwealth v. Parks, 273 Pa.Superior Ct. 506, 417 A.2d 1163 (1979). The record shows no bias, hostility, or unfairness in the court’s questioning.

Nor do we find that the court improperly restricted cross examination. The scope of cross examination is within the discretion of the trial court and the court’s decision will not be reversed absent an abuse of discretion. Commonwealth v. Britton, 251 Pa.Superior Ct. 335, 380 A.2d 807 (1977). We find no abuse here. The substance of the questioning had already been covered on direct, cross, redirect and recross examination and both appellants had a chance at those times to examine the witness.

III. Did the lower court improperly deny appellants’ requests for review of the jury selection process without any consideration of the merits of such request?

Appellant for the first time raised mid-way through the jury selection a claim of exclusion of blacks from the jury. Appellant Hopson apparently became somewhat of a disruptive influence during the selection. The Commonwealth and both appellants accompanied by counsel proceeded in front of Judge Ziegler who was apparently motion judge on the day in question.

THE COURT: The first issue is whether or not he’s entitled to be tried before jurors of his own race.
THE DEFENDANT HOPSON: Yeah. Could I have one black on my jury? That’s all I ask, at least one.
THE COURT: There’s a number of blacks up there.
THE DEFENDANT HOPSON: There’s only two. There’s five hundred white people up there, and there’s only two.
THE COURT: I’m not going to argue with you. Put on the record whatever contentions he has in regard to the selection of the jury, and if it’s turned down, then you can litigate the matter in the appellate court.

(N.T. 12/14/76, pp. 8-9)

The issue was raised a second time on the day of trial after the jury had been sworn in.

COUNSEL FOR HOPSON:
Your Honor, two points were raised preliminarily yesterday at the hearing in front of Judge Ziegler, in the middle of the Jury selection process. At that time Mr. Hopson complained to me that he felt that he was not getting a fair panel. And on behalf of Mr. Hopson, and in order to make a record in this case, I would move that this Jury be dismissed on the basis of the fact that of the sixty people empanelled for this Jury only one was black, and the one black woman was the object of a peremptory challenge on the part of the Commonwealth. I would say that, on behalf of Mr. Hopson, this is clearly a violation of his rights under the Fifth and the Fourteenth Amendments, and he is being denied a fair trial by a Jury of his peers.

(N.T. 12/15/76, p. 5)

The motion was denied.

Contrary to appellant’s claim here, appellant Hopson’s complaint as voiced to the lower court did not go to the selection process but to the particular panel of jurors he encountered in his case. Such a complaint does not constitute grounds for a challenge. Commonwealth v. Greene, 469 Pa. 399, 366 A.2d 234 (1976).

IV. Did the trial court err in not allowing testimony which tended to impeach the alleged victims’ testimony by demonstrating that they had been and subsequently were engaging in a continuing course of immoral conduct?

It is appellants’ contention that they should have been permitted to introduce evidence that the victims had approached another man prior to approaching Folino, and offered to engage in sex with him. They also claim that the court erred in prohibiting the use of testimony relating to Virginia’s subsequent conduct. The lower court found such proffered evidence irrelevant and prohibited by the Rape Shield Law, 18 Pa.C.S. § 3104.

Appellants attempt to remove the alleged prior solicitation from the scope of the act by offering such evidence to show a continuing course of conduct and by limiting its application to the corruption of minors charge. We are not persuaded. In Commonwealth v. Duncan, 279 Pa.Superior Ct. 395, 421 A.2d 257 (1980), the appellant attempted to have evidence admitted of prior sexual conduct to demonstrate bias of the prosecutrix. There this court found the law to be an absolute bar to the admission of such testimony for any purpose, unless such conduct was with the defendant. We hold that the Rape Shield Law is applicable to all prosecutions for sexual offenses set forth in Chapter 31 of the Crimes Code and also as in the instant appeal to the charge of corruption of a minor when it involves the raping of said minor. The proffered evidence was inadmissible as the trial judge correctly so held.

Appellants also wished to show that a week after the incident, Virginia again ran away. They claim she gave false statements to a police officer and stated she was “living with” a truck driver. This, appellants claim would demonstrate a continuing plan to engage in sex as a means of support. We disagree, such evidence is irrelevant. In Commonwealth v. Jenkins, 442 Pa. 588, 277 A.2d 356 (1971) the Commonwealth introduced evidence of a subsequent arrest. The prosecution argued that such evidence was relevant to: show appellant was still in possession of the weapon he had used previously; contradict appellant’s contention that he thought the gun was empty; and to show appellant was consistently reckless with guns. The Supreme Court held that the second arrest had no relation to the first occurrence. Similarly, here Virginia’s statement that she was living with a truck driver has no relationship to the criminal episode of a week earlier.

B

Appellant Hopson raises four claims of error in his pro se brief.

I. Hopson claims he was deprived of due process of law by not having a prompt preliminary arraignment. This assignment of error was not raised in either pretrial or post-trial motions and therefore has been waived. Since the lower court has not had an opportunity to consider such a complaint we may not either. Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979).

II. The second assignment of error, the legality of the arrest, was first raised orally during the suppression hearing (N.T. Suppression, p. 32). The court granted appellant permission to amend his application to suppress to include the legality of the arrest. Hopson’s specific complaint is that the police were without probable cause to arrest him.

An arrest warrant for appellant Hopson was obtained on the basis of the physical description given by the victims, the name of “Tony” on the original police report and the description of his automobile. We find, as the lower court did, that probable cause did exist to sustain the arrest.

III. Appellant’s third claim was the subject of a suppression hearing and was preserved by way of the written post-trial motions. Hopson argues that the pre-hearing, post-arrest uncounseled photo-array was improper. He then argues that any subsequent identifications at the preliminary hearing or at trial are therefore tainted. A careful reading of the notes of testimony of the suppression hearing establishes the following. The police, after determining to their satisfaction that appellant Hopson was likely involved in the criminal incident, attempted to determine who the other participants were. The police compiled a photographic array for the purpose of obtaining a description of the two other actors. Inadvertently a picture of Hopson had been included in the array. Both victims immediately identified Hopson.

We find that the lower court did not err in denying the motion to suppress the in-court identification. Even assuming the photo-array was improper, we believe any later identification was free of any taint and had an independent basis. The victims had spent an extended period of time in the company of both appellants, some of which was in daylight and some face to face. We find that the victims had ample opportunity to observe appellant and any in-court identification was based on such and not on the array. See Commonwealth v. Scott, 469 Pa. 258, 365 A.2d 140 (1976).

IV. Hopson’s final contention is a challenge to his attorney’s effectiveness. He contends that he informed counsel that on the initial day in question he was visiting an elderly lady. Furthermore, he alleges that during the subsequent six days he visited a clinic and a dry cleaning establishment. He claims that trial counsel did not investigate or present evidence on such claims.

Appellant was represented at trial and on this appeal by the public defender. Since his pro se brief raises the issue of ineffective trial counsel, Commonwealth v. Gardner, 480 Pa. 7, 389 A.2d 58 (1978), it requires us to remand for the appointment of new counsel. Alternatively, on remand appellant may choose to retain appellate counsel provided he is informed of the dangers of proceeding with counsel from the same office as trial counsel. If appellant then wishes to continue to pursue his claim of ineffectiveness, we direct the lower court to conduct an evidentiary hearing on the matter.

Commonwealth v. Folino, No. 643 April Term, 1977 is affirmed. Commonwealth v. Hopson, No. 644 April Term, 1977 is affirmed in part and remanded in part.

      . N.T. 12/15/76, p. 118. Testimony later indicated eight minutes elapsed.

      . Furthermore, appellant failed to file a timely written motion challenging the array as required by Rule 1104 Pa.R.Crim.P. Accordingly, any challenge should have been denied as untimely. Commonwealth v. Adams, 476 Pa. 91, 381 A.2d 882 (1977).

      . § 3104. Evidence of victim’s sexual conduct
      (a) General rule.—Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.
      (b) Evidentiary proceedings.—A defendant who proposes to offer evidence of the alleged victim’s past sexual conduct pursuant to subsection (a) shall file a written motion and offer of proof at the time of trial. If, at the time of trial, the court determines that the motion and offer of proof are sufficient on their faces, the court shall order an in camera hearing and shall make findings on the record as to the relevance and admissibility of the proposed evidence pursuant to the standards set forth in subsection (a).
      As amended 1976, May 18, P.L. 120, No. 53, § 1, effective in 30 days.

      . The victims described the vehicle as a white Cadillac, with a white roof and interior. The car was described as having white fur around the steering wheel and blue fur around the rear-view mirror. The automobile supposedly had “T-O-N-Y” on a front plate. Hopson’s car matches this description.

      . Co-appellant Folino had been described as a light complected negro or a dark complected Caucasian. Hopson is a dark complected negro; his picture was the only such picture in the array.

      . As we find an independent basis existed, we need not decide whether a defendant has a right to counsel at a post-arrest photographic array. See generally, Commonwealth v. Harvey, 231 Pa.Superior Ct. 86, 331 A.2d 915 (1974).