source: Caselaw Access Project

author: SPAETH, Judge:

license: Public Domain

text:
    444 A.2d 709
    COMMONWEALTH of Pennsylvania, v. Terry BOYER, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 14, 1979.
    Filed April 16, 1982.

      Ronald P. Rusinak, Assistant Public Defender, Ebensburg, for appellant.
    Gerard Long, District Attorney, Ebensburg, submitted a brief on behalf of Commonwealth, appellee.
    Before SPAETH, HOFFMAN and VAN der VOORT, JJ.
   SPAETH, Judge:

This is an appeal from judgment of sentence for neglect to support a bastard child. 18 Pa.C.S. § 4323. This is the second time we have considered this appeal. The first time we remanded so that the lower court might appoint new counsel. Commonwealth v. Boyer, 277 Pa.Superior Ct. 82, 419 A.2d 671 (1980). New counsel was appointed, and he now argues, among other issues, that trial counsel was ineffective for failing to file an application for an order dismissing the charge on the ground that Pa.R.Crim.P. 1100 had been violated. We agree and therefore order appellant discharged.

The complaint against appellant was filed on July 19, 1976. The Commonwealth never applied under Rule 1100(c) for an order extending the time for trial; no period of time was excludable under Rule 1100(d); and appellant did not formally waive his Rule 1100 rights. The last day on which trial could properly have commenced was therefore January 15, 1977. In fact trial did not commence until April 7, 1977.

The Commonwealth admits that it never applied for an order extending the time for trial and that appellant’s trial counsel failed to apply under Rule 1100(f) for an order dismissing the charge. It maintains, however, that the claim that trial counsel was therefore ineffective has been waived because it was not raised in appellant’s post-verdict motions.

In Commonwealth v. Seachrist, 478 Pa. 621, 387 A.2d 661 (1978), the Supreme Court said:

Issues not raised in post-verdict motions will not be considered on appeal. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). An exception to this exists, however, when ineffective assistance of prior counsel is raised. The rule then is that ineffectiveness of prior counsel must be raised at the earliest stage in the proceedings at which counsel whose ineffectiveness is being challenged no longer represents the appellant. Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977); Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).

Id., 478 Pa. at 624, 387 A.2d at 663 (footnote omitted). The Court thus identified two situations. In the first situation the defendant is represented at trial by Lawyer A and at the post-verdict proceedings by Lawyer B. In this situation Lawyer B must raise the issue of Lawyer A’s ineffectiveness in the post-verdict motions, or the issue will be held waived. In the second situation the defendant is represented at trial and at the post-verdict proceedings by Lawyer A; Lawyer B does not enter the case until after the post-verdict motions have been denied. In this situation Lawyer B must raise the issue of Lawyer A’s ineffectiveness on appeal, or the issue will be held waived.

The present case falls within the first of these two situations. Appellant was represented at trial by Stephen Dugan and at the post-verdict proceedings by Ronald Rusinak. But Dugan and Rusinak were both assistant public defenders. Since one assistant defender cannot be expected to argue that a fellow assistant defender was ineffective, a defendant represented by different assistant public defenders is regarded as having been represented by a single lawyer—Lawyer A, in the terms of our illustrations. Commonwealth v. Wright, 473 Pa. 395, 374 A.2d 1272 (1977); Commonwealth v. Crowther, 241 Pa.Superior Ct. 446, 361 A.2d 861 (1976). The fact that Rusinak did not raise in the post-verdict motions the issue of Dugan’s ineffectiveness is therefore of no consequence. On our remand a new lawyer, Kevin Sanders, was appointed—Lawyer B in the terms of our illustrations. Since Sanders raised the issue of Dugan’s and Rusinak’s ineffectiveness “at the earliest stage” he could, that is, on this appeal, the issue has not been waived.

The Commonwealth next argues that even so, we should remand to the lower court for an evidentiary hearing to determine whether trial counsel had some reasonable basis for not applying under Rule 1100(f) for an order dismissing the charge. But remand would serve no useful purpose. Where, as here, the violation of Rule 1100 is manifest, there can be no reasonable basis for failing to apply for an order dismissing the charge. Commonwealth v. Weber, 256 Pa.Superior Ct. 249, 389 A.2d 1107 (1978). See also, Commonwealth v. Byrd, 250 Pa.Superior Ct. 250, 378 A.2d 921 (1977), case remanded 493 Pa. 178, 425 A.2d 722 (1981) (remand to determine whether in fact Rule 1100 had been violated).

The judgment of sentence is vacated and appellant is ordered discharged.


text:
    444 A.2d 711
    COMMONWEALTH of Pennsylvania v. Fred COOLEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 21, 1980.
    Filed April 16, 1982.
    Henry J. Lunardi, Philadelphia, for appellant.

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

This is an appeal from an order denying post-conviction relief. We reverse and remand so that appellant may file an appeal nunc pro tunc.

Appellant was convicted of burglary by a judge sitting without a jury. After post-verdict motions were made and denied he was sentenced to 3 to 15 years in prison. He was represented in these proceedings by a public defender.

The day after.the imposition of sentence appellant wrote from Graterford Prison requesting counsel to file an appeal. He received a reply from the chief of the appeals division of the public defender’s office stating: that the defender’s office would not file an appeal for him because it believed an appeal would be without merit; that forms were included that appellant could use in filing an appeal pro se; and that if he had any questions, he should put them to the Law Clinic at the prison. Appellant did not file an appeal pro se.

On May 17, 1977, appellant filed a P.C.H.A. petition and on September 14, 1978, after the appointment of counsel, an amended petition. In the amended petition he alleged that trial counsel had been ineffective in failing to file a direct appeal as requested, and he asked that he be permitted to appeal nunc pro tunc. After a hearing this petition was denied by the lower court and the present appeal followed.

Trial counsel’s responsibilities as appellant’s appointed counsel did not end with his sentencing. Pa.R.Crim.P. 316(c)(iii). See Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1968); Commonwealth v. Hickox, 433 Pa. 144, 249 A.2d 777 (1969). Even if trial counsel believed that appellant’s appeal would be without merit it was still his duty to perfect the appeal once requested to do so and then to follow the procedures required by Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968), and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). Because appellant’s trial counsel failed to perfect the appeal, he was ineffective. Commonwealth v. Fareri, 271 Pa.Superior Ct. 174, 412 A.2d 632 (1979).

Once we have determined that appellant was denied the right of direct appeal because of the failure of counsel to file an appeal after being requested to do so our inquiry is finished. The Commonwealth argues that in order to be entitled to relief under the Post Conviction Hearing Act appellant must also show that his appeal would have had merit. This court sitting en banc has just reaffirmed that that is not the law. Once appellant has shown that he was wrongfully denied his right of direct appeal the question of whether his appeal is meritorious is to be decided on the appeal to which he has been entitled all along. Commonwealth v. Miranda, 296 Pa.Superior Ct. 441, 442 A.2d 1133 (1982); Commonwealth v. May, 296 Pa.Superior Ct. 435, 442 A.2d 1129 (1982).

The order of the lower court is reversed, and the case is remanded so that appellant may file an appeal nunc pro tunc.

      . We have held this case until the opinions in Miranda and May were filed.


text:
    444 A.2d 712
    COMMONWEALTH of Pennsylvania v. Charles RITCHIE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 16, 1979.
    Filed April 16, 1982.

      William J. Hain, Erie, for appellant.
    Shad Connelly, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before SPAETH, HOFFMAN and VAN der VOORT, JJ.
   SPAETH, Judge:

This is an appeal from an order dismissing a Post Conviction Hearing petition. Appellant claims that he did not knowingly waive his right to appeal the judgment of sentence that was imposed following his conviction for robbery. We agree and therefore reverse and remand with instructions to permit appellant to file an appeal nunc pro tunc.

Appellant was found guilty of robbery by a jury on November 18, 1975. Post-verdict motions were dismissed and on March 3, 1976, appellant was sentenced to &A to 9 years in prison. The notes of testimony of the sentencing proceedings were never transcribed because the court reporter left the employ of the county and could not be found.

Appellant’s PCHA petition was filed pro se on September 15, 1978, and was later amended. A hearing on the petition was held on February 28 and March 1, 1979. The testimony was by appellant; by the lawyer who had been privately retained by appellant and had represented him at trial and through sentencing; and by the public defender who represented appellant after sentencing. This testimony discloses the following.

Appellant did not recall being told at the time of sentencing either that he had only 30 days within which to appeal, or that if he could not afford a lawyer to represent him on appeal, one would be provided for him. N.T. (2/28/79) at 13. Appellant’s trial counsel testified that after the sentencing hearing he told appellant of his right to an appeal. However, he also testified that he told appellant that he would not represent him on the appeal because appellant could not afford to pay him. N.T. (2/28/79) at 4-5. Appellant testified that he understood that only his trial counsel could file an appeal for him. N.T. (2/28/79) at 19. Appellant was then taken to prison to begin serving his sentence and trial counsel sent his file to the Public Defender’s office.

The public defender assigned to appellant’s case had only been a practicing attorney for a few months, N.T. (3/1/79) at 1, and was not officially a member of the defender’s office, N.T. (2/28/79) at 6. He did not visit or write appellant to inform him that he had been assigned to represent him. He did discuss with appellant’s trial counsel the possible merits of an appeal; but he did not ask trial counsel whether appellant wanted to appeal. See N.T. (2/28/79) at 6.

On the 28th day of the 30 day period for filing an appeal the defender filed a petition for reconsideration of sentence. He then informed appellant for the first time that he was representing him. He also informed appellant that he had filed a petition for reconsideration of the sentence, and that there would be a hearing on the petition. N.T. (3/1/79) at 4-5. The defender did not ask appellant whether he wanted to appeal, nor did he advise him that the petition for reconsideration would not by itself toll the appeal period.

The petition for reconsideration was denied on May 27, 1976. The defender informed appellant of the denial but did not ask him whether he wished to proceed further. Approximately one week later, on June 3, 1976, appellant wrote to the defender, asking him “to see what I [the defender] could do about getting the trial transcripts because he [appellant] was going to prepare an appeal.” N.T. (3/1/79) at 2. In reply, the defender wrote to appellant that the transcripts had not yet been filed, but that appellant would be notified when they were. N.T. (3/1/79) at 3.

It is settled that a defendant is entitled to effective assistance of counsel on appeal and that such assistance includes counsel’s assistance in perfecting the appeal. Commonwealth v. Blackwell, 258 Pa. Superior Ct. 121, 392 A.2d 714 (1978); Commonwealth v. Haynes, 234 Pa.Superior Ct. 556, 340 A.2d 462 (1975). Where counsel, because of ignorance of proper procedures, fails to file a timely appeal, he is ineffective. Commonwealth v. Vasquez, 268 Pa.Superior Ct. 295, 408 A.2d 154 (1979).

Had the defender but once asked appellant whether he wanted to appeal, the problem presented by this case might have been avoided. Instead, he never informed appellant of his right to appeal, never asked him whether he wanted to appeal, and may well have misled appellant, for it was clear from appellant’s letter of June 3 that appellant wanted to appeal, and by replying to the letter only that appellant would be informed when his transcripts had been filed, the defender may have suggested to appellant that filing an appeal could await receipt of the transcripts.

The defender justified his failure to act by stating that he believed he had been appointed only to file a petition for reconsideration and nothing more. However, he should have known that since he was acting as post-sentencing counsel, he was responsible for preserving appellant’s right to appeal, and that the mere filing of a petition for reconsideration of sentencing would not by itself toll the appeal period. See Commonwealth v. Wilkinson, 260 Pa.Superior Ct. 77, 393 A.2d 1020 (1978); Commonwealth v. Lord, 230 Pa.Superior Ct. 96, 326 A.2d 455 (1974). Furthermore, his statement that he was only concerned with the petition for reconsideration is belied by the fact that he initiated a discussion of the possible merits of an appeal with appellant’s trial counsel. The record does not disclose trial counsel’s appraisal of the case. However, even if the defender was convinced that an appeal would be meritless, that was no reason for failing to protect appellant’s right to appeal, for appellant had an absolute right to appeal. Commonwealth v. Wilkerson, 490 Pa. 296, 416 A.2d 477 (1980); Commonwealth v. Fareri, 271 Pa. Superior Ct. 174, 412 A.2d 632 (1979). Thus, if the defender’s failure to file an appeal was based on his own view that an appeal would be meritless, he acted improperly. In any event, his failure during the appeal period even to ask appellant whether he wanted to appeal was in the circumstances inexcusable. Cf. Commonwealth v. Robinson, 487 Pa. 541, 410 A.2d 744 (1980) (right to appeal waived where appellant never told counsel that he wanted to appeal ty in communicating with counsel

As mentioned earlier, there are no notes of testimony available from the sentencing proceeding. The PCHA hearing judge had also been the trial judge. At the hearing he said that he did not recall any occasion on which as trial judge he had failed properly to inform a defendant of his appellate rights. N.T. (2/28/79) at 18. In the absence of notes of testimony the burden was on the Commonwealth to prove that appellant had knowingly waived his right to appeal. Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968). Even if we put appellant’s testimony aside, still the •testimony of trial counsel and of the defender shows that the Commonwealth failed to sustain its burden.

Once we have determined that there has been a denial of the right of direct appeal our inquiry stops. We do not consider what the merits of such an appeal might be but rather remand to the lower court with instructions that appellant be permitted to file a direct appeal nunc pro tunc. Commonwealth v. Miranda, 296 Pa.Superior Ct. 441, 442 A.2d 1133 (1982); Commonwealth v. May, 296 Pa.Superior Ct. 435, 442 A.2d 1129 (1982).

The order of the lower court is reversed and the case is remanded so that appellant may file an appeal nunc pro tunc.

      . This procedure has just been reaffirmed by this court sitting en banc in Commonwealth v. Miranda, supra, and Commonwealth v. May, supra. We have held this case until the opinions in Miranda and May were filed.


author: HESTER, Judge:

text:
    444 A.2d 715
    PENNYPACK WOODS HOME OWNERSHIP ASSOCIATION, Appellant, v. David REGAN and John Regan. PENNYPACK WOODS HOME OWNERSHIP ASSOCIATION (A Corporation) v. David REGAN and John Regan, Appellant.
    Superior Court of Pennsylvania.
    Argued March 10, 1981.
    Filed April 16, 1982.

      Edward I. Swichar, Philadelphia, for Pennypack Woods Home Ownership Assn.
    Mary Alice Duffy, Philadelphia, for David and John Regan.
    Before HESTER, DISALLE and MONTGOMERY, JJ.
   HESTER, Judge:

On July 3, 1964, appellant, Pennypack Woods Home Ownership Association, filed a complaint in equity against appellee David Regan in the Court of Common Pleas of Philadelphia County. This complaint concerned a trespass upon real property, as well as other questions relating to the rights of use and enjoyment of said property. The case was assigned to the Honorable James T. McDermott, who heard the case without a jury.

On September 12, 1966, Judge McDermott entered an oral consent decree, in open court, upon the concurrence of all parties, setting forth certain rights and obligations of the respective parties with regard to the real property involved. The consent decree was transcribed and filed with the lower court. In the decree, Judge McDermott specified “.. . that such powers as are within our reach will be used without failure against he who fails to carry out the Order.”

In June of 1976, Pennypack filed a motion with the lower court requesting that the court hold Regan in contempt for allegedly violating the consent decree of September 12,1966. Regan filed an answer and “counterclaim” to the motion. The motion was assigned to Judge McDermott for his disposition. Counsel for Pennypack wrote a letter to Judge McDermott, requesting that a hearing on the motion for contempt be scheduled.

On April 26, 1979, without a hearing, the lower court entered an Order dismissing Pennypack’s motion and Regan’s “counterclaim”, “as moot by reason of the passage of time”. On May 6, 1980, the lower court entered its opinion in support of its order of April 26, 1979. The opinion basically stated that the passage of time (almost 12 years) rendered the contempt issue moot, and that Pennypack’s proper remedy was to sue in Assumpsit for violation of the “contract” to which the parties had agreed on September 12, 1966.

Appellee-Regan had been granted an extension of time to file a brief with this Court on or before February 18, 1982. However, no brief has been filed.

We reverse.

It is well settled that a Consent Decree “binds the parties with the same force and effect as if a final decree had been rendered after a full hearing upon the merits.” Zampetti v. Cavanaugh, 406 Pa. 259, 265, 176 A.2d 906, 909 (1962); Commonwealth v. United States Steel Corporation, 15 Pa.Cmwlth. 184, 325 A.2d 324, 328 (1974); Baran v. Baran, 166 Pa.Super. 532, 537, 72 A.2d 623 (1950); Sabatine v. Commonwealth, 41 Pa.Cmwlth. 109, 398 A.2d 741 (1979). The discontinuance or settlement of the action which gave rise to the consent decree does not deprive the court of its jurisdiction to enforce the decree. Calantzis v. Collins, 440 Pa. 354, 358, 269 A.2d 655, 657 (1970).

On September 12, 1966, the lower court specifically noted its continuing jurisdiction to enforce the terms of the decree. If such were not the case, parties would not have the incentive to settle a dispute by way of consent decree prior to final hearing and decision. The policy of encouraging parties to enter into settlement agreement, by way of a consent decree, and the principle of stare decisis mandate that parties to a consent decree be able to seek direct enforcement of the decree without the filing of a separate and independent cause of action in assumpsit or otherwise.

Accordingly, we remand to the jurisdiction of the lower court for an evidentiary hearing concerning Penny-pack’s motion for contempt, as well as Regan’s “counterclaim”.

Reversed and Remanded to the jurisdiction of the lower court.

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

      . Since the issue is not properly before us, we express no opinion concerning the procedures used in this case relevant to the contempt proceeding.


author: HESTER, Judge: BECK, Judge,

text:
    444 A.2d 717
    COMMONWEALTH of Pennsylvania v. Curtis BEDSAUL, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 23, 1981.
    Filed April 16, 1982.

      Howard Gallagher, Assistant Public Defender, Media, for appellant.
    Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and BECK, JJ.
   HESTER, Judge:

Officer Kruczaj, a Chester County police officer, was summoned via the radio dispatch to investigate the presence of the appellant in the women’s dormitory at Widener College. The appellant entered the dormitory without authority, invitation or privilege. The officer did not, at first, arrest the appellant because no serious criminal activity seemed to be afoot. Instead, he agreed to drive the appellant to his home, especially since the latter appeared intoxicated and had no vehicle nearby. Before allowing the appellant to sit in the patrol car, Officer Kruczaj patted his outer clothing. The pat-down disclosed a small plastic vial containing pills and a hypodermic syringe. As a result, the appellant was tried and convicted for violating the provisions of The Controlled Substance, Drug, Device and Cosmetic Act. Pa.Stat.Ann. title 35, § 780-113. This appeal was filed from his sentence of 18 months’ probation.

The appellant asserts, first, that he was not tried within 180 days of the filing of criminal charges; therefore, the provisions of Pa.R.Crim.P. 1100(a)(2) were violated. The appellant was free on bail pending disposition of the criminal charges. He failed to appear for trial. Subsection (d)(1) of Rule 1100 excludes that time period from the 180-day calculation during which the defendant renders himself unavailable at any stage of the proceedings. By excluding the period of time during which the appellant was unavailable, there was no violation of the 180-day rule.

The appellant’s second argument is rejected as well. He maintains that the vial and syringe were taken from him in violation of the search and seizure principles of the Fourth Amendment. Conversely, Officer Kruczaj wanted to make certain that the appellant possessed no dangerous weapons before permitting him to enter the back seat of the patrol car.

Warrantless searches are permissible where the officer observes the suspicious nature of the individual’s behavior and reasonably concludes that the individual may be contemplating the commission of a crime and may be carrying a dangerous weapon. Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969). However, a person’s behavior must arouse more than suspicion before a warrantless search not incident to a lawful arrest is permitted. Commonwealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1970). The appellant was found by Officer Kruczaj in the rear of the girl’s dormitory at Widener College in a stupefied condition. It is inconceivable that the appellant went to the dormitory for the purpose of conducting a gentlemanly visit; his presence was rightfully feared by the young women and justifiably viewed by Officer Kruczaj with caution and apprehension. Appellant had no cause or reason to be in that building. The mere act of arriving at the dormitory without invitation and in a dazed condition was alarming enough and provided sufficient cause to reasonably infer that criminal activity was afoot. Moreover, we do not believe that the law prohibits the warrantless search of an individual whose actions were stopped short of all criminal behavior and who requested transportation in a police vehicle. Although no arrest was made, Officer Kruczaj acted reasonably when assuming that the appellant may well have entered the patrol car with a concealed deadly weapon.

We must support officers who act swiftly, justly and with compassion. Where an accused suffers no prejudice, the law should not require an officer to delay effective crime prevention. Furthermore, the officer’s consent to transport the appellant home was a compassionate act that shielded the appellant from criminal punishment and prevented harm to innocent parties. Certainly such competent police supervision should be encouraged with laws that assure the safety of the officer.

Judgment of sentence affirmed.

BECK, J., files a dissenting opinion.

BECK, Judge,

dissenting:

I dissent because the search of appellant’s person was illegal and violative of his Fourth Amendment rights. The evidence in question was obtained from him as a result of a “stop and frisk.” The officers contend that they patted down appellant’s outer clothing and then searched him as a safety precaution before admitting him into their car.

At the suppression hearing, Officer Kruczaj testified that he and his partner received a radio dispatch that there was a man in the women’s dormitory at Widener College who appeared to be intoxicated. They found him in what the officer termed “a dazed state.” They questioned him, found nothing- to arouse their suspicion and asked him if he had a vehicle in which to return home. He replied that he owned no vehicle and requested a ride home. Before appellant was permitted into the police car and without his consent, he was frisked. A small plastic vial containing pills and a hypodermic syringe were removed from his clothing.

There are only two justifications that may be offered to sustain-a search in a case of this type: (1) the search was incident to a lawful arrest; that is, the officers had probable cause to believe that appellant had committed or was about to commit a crime, and (2) the existence of specific facts leading to the belief that appellant was armed and dangerous. There was testimony at the suppression hearing that appellant was searched because the officers were concerned for their own safety, and that the search represented standard police practice before giving any civilian a ride. There was no testimony, however, articulating facts supporting a belief that appellant was armed and dangerous.

Commonwealth v. Hicks, 434 Pa. 153, 158-159, 253 A.2d 276, 279 (1969), the seminal Pennsylvania case, is instructive on permissible search:

First, a seizure and search ... is reasonable and legitimate if the police officer has probable cause to arrest, i.e., if at the inception of the seizure he has knowledge of sufficient facts and circumstances, gained through trustworthy information, to warrant a prudent man in the belief that the person seized has committed, is committing or is about to commit a crime. Second, even if probable cause to arrest is absent, the police officer may still legitimately seize a person . . . and conduct' a limited search of the individual’s outer clothing in an attempt to discover the presence of weapons which might be used to endanger the safety of the police officers and others, if the police officer observes unusual and suspicious conduct on the part of the individual seized which leads him reasonably to conclude that criminal activity may be afoot and that the person with whom he is dealing may be armed and dangerous.

(Emphasis in original.) (Footnote omitted.) See Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In addressing the suppression issue, the trial court relied on Commonwealth v. Stratton, 231 Pa.Super. 91, 331 A.2d 741 (1974). That reliance was misplaced. Under the Stratton rationale, a search to discover weapons is justified only if the officer reasonably concludes that criminal activity may be afoot and that the suspect is armed and dangerous:

[T]he police officers must be able to articulate facts which aroused their suspicion and a mere allegation that a suspect engaged in “suspicious” conduct is not sufficient to justify a “stop and frisk.”

Id, 231 Pa.Superior Ct. at 94-95, 331 A.2d at 742. See Commonwealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1970); Commonwealth v. King, 247 Pa.Super. 443, 372 A.2d 908 (1977); Commonwealth v. Purnell, 241 Pa.Super. 230, 360 A.2d 737 (1976); Harvey Appeal, 222 Pa.Super. 222, 295 A.2d 93 (1972).

Police officers find themselves in perilous situations every working day of their lives. In the instant case, the court recognizes the dilemma facing the officers: whether to transport an apparently intoxicated civilian and face a personal safety risk or whether to leave him in the area possibly to commit mischief. The officers could have resolved that dilemma by asking appellant to consent to a limited frisk before giving him a ride. They failed to ascertain such a consent. Under the clear mandate of the law they were not justified in frisking him without it.

I would reverse judgment of sentence.

         Although the officers may have had probable cause to arrest the appellant for criminal trespass, the record indicates that they did not intend to do so and that the search was not in any way connected with the appellant’s trespass onto the Widener College campus.


author: BROSKY, Judge: WIEAND, Judge,

text:
    444 A.2d 720
    COMMONWEALTH of Pennsylvania v. James Robert HENDERSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 1, 1981.
    Filed April 16, 1982.

      William Costopoulos, Lemoyne, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before BROSKY, WIEAND and MONTEMURO, JJ.
   BROSKY, Judge:

Appellant, James Robert Henderson, takes this appeal from the trial court’s denial, without hearing, of his Post Conviction Hearing Act (PCHA) petition at which Henderson argued that his trial counsel was ineffective for persuading him to plead guilty to the charge of unlawful possession and delivery of controlled substances. Henderson asserts that he was assured that he could receive “county time” in exchange for his plea. He received a sentence of two to five years imprisonment to be served at a state institution. The trial court in its opinion denying Henderson’s PCHA petition relied upon Henderson’s statement during the guilty plea colloquy, that no assurances were made to him inducing his guilty plea. No hearing was held on Henderson’s PCHA petition. Henderson asserts that a hearing should have been held based upon the allegations raised in his PCHA petition. We reverse and remand for an evidentiary hearing.

First, we must determine whether Henderson has waived his claims to relief. In Commonwealth v. McCall, 267 Pa.Super. 351, 406 A.2d 1077 (1979), we said that a guilty plea was unlawfully induced had not been waived despite the failure to file a petition to withdraw or take a direct appeal because ineffective assistance of counsel was asserted. We have consistently held that such an assertion constitutes an extraordinary circumstance preventing waiver of claims raised in an otherwise defective PCHA petition. Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976); Commonwealth v. Palmer, 264 Pa.Super. 165, 399 A.2d 718 (1979). Henderson asserts that his trial counsel was ineffective in advising him to plead guilty based upon a guarantee that he would receive county time. Wé are satisfied that Henderson has asserted an extraordinary circumstance which prevents the issues in his PCHA petition from being waived, even though he failed to file a petition to withdraw his guilty plea or take a direct appeal.

In Commonwealth v. Farnwalt, 286 Pa.Super. 559, 561, 429 A.2d 664, 665 (1981), we said:

In Commonwealth v. McCall, supra, the petitioner alleged that his trial counsel promised the petitioner that if he pleaded guilty he would get a sentence of two and one-half to five years, rather than the three to ten year sentence he did receive. In McCall, the PCHA hearing court denied the petition at issue without a hearing. This court reversed and remanded for an evidentiary hearing. In our McCall opinion, we quoted at length from our earlier opinion in Commonwealth v. Strader, 262 Pa.Super. [166] at 174, 396 A.2d [697] at 702, in which we wrote,
“The petition alleges, inter alia that appellant’s plea was unlawfully induced because counsel failed to conduct an appropriate investigation or prepare an adequate defense to the charge of rape, counsel failed to move to suppress an identification procured in a suggestive manner, and counsel persistently advised Petitioner that a deal for “3 to 8 was better than 10 to 20” and that he should enter a guilty plea on pragmatic grounds rather than on grounds of innocence or guilty.’ Upon an examination of the record before us, we cannot say that appellant’s claims are patently frivolous or without support on the record. Even though the Commonwealth disputes appellant’s allegations and even though appellant stated at his guilty plea colloquy that his plea was not induced by anything other than the sentence agreement and that he was satisfied with the representation he received from his counsel, the record does not clearly refute appellant’s claim that his plea was unlawfully induced. See Commonwealth v. Knapp, 212 Pa.Super. 560, 562, 243 A.2d 179, 180 (1968). Our courts have previously determined that in borderline cases petitioners are to be given ‘every conceivable legitimate benefit in the disposition of their claims for an evidentiary hearing.’ Commonwealth v. Nahodil, 212 Pa.Super. 77, 79, 239 A.2d 840, 840 (1968). See also Commonwealth v. Laboy, 460 Pa. 466, 470, 333 A.2d 868, 870 (1975).” (footnote omitted), (emphasis added)
As we said in McCall, if at the hearing appellant can prove the existence of the alleged guarantee, then his guilty plea would not have been intelligently entered. On the other hand, if at the evidentiary hearing the PCHA court finds that no such guarantee was made by counsel, then appellant’s petition should be denied. Accordingly, we reverse and remand for an evidentiary hearing.

We find the decisions in Commonwealth v. Farnwalt, supra, and Commonwealth v. McCall, supra, require that we reverse and remand for an evidentiary hearing. See also: Commonwealth v. Reider, 267 Pa.Super. 359, 406 A.2d 1081 (1979).

Order reversed, case remanded to the lower court for an evidentiary hearing addressing the issue raised in Henderson’s PCHA petition. Jurisdiction is not retained by this court.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge,

dissenting:

I respectfully dissent. This is not a “borderline case.” Appellant’s assertion that trial counsel promised him a “county time” sentence in return for a plea of guilty is patently frivolous. Such a promise is contradicted by appellant’s express representations to the contrary at the time of the guilty plea colloquy. “A criminal defendant who elects to plead quilty has a duty to answer questions truthfully. We cannot permit a defendant to postpone the final disposition of his case by lying to the court and later alleging that his lies were induced by the prompting [or ineffectiveness] of counsel.” Commonwealth v. Brown, 242 Pa.Superior Ct. 240, 247, 363 A.2d 1249, 1253 (1976).

Becausé appellant’s PCHA assertion is flatly and unequivocally contradicted by his own statements made during the guilty plea colloquy, I would affirm the order dismissing the PCHA petition without a hearing.

      . In his dissenting opinion, Judge Wieand cites for authority Commonwealth v. Brown, 242 Pa.Super. 240, 363 A.2d 1249 (1976). We do not find that decision to be persuasive any longer. Our decision in Commonwealth v. Strader, 262 Pa.Super. 166, 396 A.2d 697 (1978), clearly established the procedure to be followed in the instant case. See pages 720 and 721 infra. Thus, we are convinced that to the extent that Commonwealth v. Brown, supra, is inconsistent with Commonwealth v. Strader, supra, it has been reversed.


author: BROSKY, Judge:

text:
    444 A.2d 722
    COMMONWEALTH of Pennsylvania v. Bobbie ROBERSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 30, 1981.
    Filed April 16, 1982.

      Lawrence A. Kalikow, Assistant Public Defender, Harrisburg, for appellant.

      William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before BROSKY, WIEAND and MONTEMURO, JJ.
   BROSKY, Judge:

Following a non-jury trial, appellant was convicted of the crime of prostitution. Timely post-trial motions were filed and denied, and appellant was sentenced to twelve months probation. Thereafter, appellant took this appeal to our court. We affirm.

Appellant raises two contentions on appeal: first, that the evidence was insufficient to sustain a verdict of guilty under 18 Pa.C.S. § 5902(a)(2); and second, that the trial court erred in admitting into evidence testimony relating to appellant’s prior conduct.

The facts are as follows. On March 19, 1980, at approximately 1:10 a. m., Officer John Goshert of the Harrisburg Police Department, working undercover on the vice detail, drove in his own, unmarked car past the 1400 block of North Third Street. As he drove past, he saw appellant standing on the corner, near Friendly’s Bar. Appellant waved to him to pull over.

Instead of immediately stopping, Officer Goshert proceeded to drive around the block. Upon returning to the corner of the 1400 block of North Third Street, he saw appellant still standing in the same spot. At this point, Officer Goshert brought his vehicle to a stop in a nearby parking lot, whereupon appellant opened the passenger side door and stepped inside. Once inside, she directed the officer to drive her around the uptown area, and asked him various questions concerning where he lived and worked. She also specifically asked him to show her some identification to assure her that he was not a police officer, which he declined to do. Appellant then asked him if he was “going out,” and when he answered affirmatively, she directed him to a house in the 900 block of Grand Street where she said she “always did her business.” She then asked him how much money he had to spend, and when he said he had $20, she stated that she would perform certain sexual acts for $25. After requesting her “regular room” from a man who answered the door, appellant led Officer Goshert to the room, whereupon he identified himself as a police officer and arrested her.

Section 5902(a)(2) provides:

(a) Prostitution—A person is guilty of prostitution, a misdemeanor of the third degree, if he or she:
(2) loiters in or within view of any public place for the purpose of being hired to engage in sexual activity. (Emphasis added).

Appellant does not dispute that the corner of 1400 North Third Street is “within view of any public place.” What she does contend, however, is that she was not “loitering.” Since “loitering” is not defined in the statute, it must be construed according to its common and approved usage. See “Statutory Construction Act of 1972.” Webster’s New Collegiate Dictionary 671 (8th ed. 1979) defines “loiter” as inter alia: to “hang around,” to “lag behind.” In Commonwealth v. Hill, 254 Pa.Super. 155, 385 A.2d 572 (1978) we cited the definition given in Black’s Law Dictionary (rev. 4th ed., p. 1092):

To be dilatory ... to stand around or move slowly about ... to saunter; to delay ... to linger . . .

Appellant argues that she was only observed by Officer Goshert as appearing on the corner in question for approximately one minute, and that therefore, her actions cannot be characterized as “slow” or “dilatory.” On cross-examination, Officer Goshert testified that he had no idea as to how long appellant had been on that corner prior to his observation of her waving at him. We disagree with appellant’s reasoning here. As the Commonwealth argues, an understanding of the common usage of the word “loiter” is not arrived at through an examination of the amount of time in which an individual engages in a course of conduct sought to be defined as “loitering.” A consideration of all the circumstances surrounding the conduct in question is relevant. To begin with, at the time she was first observed by the officer, appellant was clearly “standing around.” After waving to the officer, appellant continued to “stand around,” “to delay,” and “to linger” on the corner. In addition, it is significant that appellant was engaging in this course of conduct at 1:10 a. m.

That appellant was loitering “for the purpose of being hired to engage in sexual relations” cannot be doubted. The facts show that appellant waived to Officer Goshert, a total stranger to her, and indicated that he pull over. When he stopped his car, appellant immediately got inside, and then asked the officer if he was “going out” and later directed him to the particular house on Grand Street where she stated she “always did her business.” Clearly, the evidence concerning appellant’s words and conduct was sufficient for the trial court to have inferred that appellant was loitering on the corner in question for the purpose of being hired to engage in sexual relations.

Appellant’s second contention is that the court below erred in admitting into evidence testimony concerning appellant’s presence in the Third Street area on other occasions. Officer Goshert testified that he had seen appellant on Third Street on at least one prior occasion, in the “late evening, early morning hours,” “walking up and down on the street, and standing on the corner.” However, the officer stated that he had never spoken with her, and that “[s]he never solicited me for prostitution [on those occasions].”

Appellant argues that this evidence was irrelevant and prejudicial. While we agree that the fact that appellant may have “loitered” on Third Street in the past did not make it more or less probable that she loitered on the occasion in question, we do not find that this evidencé was prejudicial to appellant. The Commonwealth had already presented sufficient evidence to establish that appellant, on the occasion in question, “loitered in or within view of any public place for the purpose of being hired to engage in sexual activity.” 18 Pa.C.S. § 5902(a)(2). The testimony concerning other occasions was given on redirect examination, after the Commonwealth had already made out its prima facie case. Although the testimony concerning other occasions may have led the trial court to infer that appellant had loitered in the past for the purposes of prostitution, that inference was innocuous in view of the other evidence presented at trial and was, therefore, harmless error. Commonwealth v. Weakland, 273 Pa.Super. 361, 417 A.2d 690 (1979). There was sufficient evidence here to find appellant guilty of prostitution without the additional testimony complained of as being prejudicial.

Accordingly, we affirm the judgment of sentence.

WIEAND, J., concurs in the result.

      . 18 Pa.C.S. § 5902(a)(2).

      . Act of December 6, 1972, P.L. 1339 No. 290, § 3, 1 Pa.C.S. § 1501 et seq.


author: WIEAND, Judge:

text:
    444 A.2d 724
    COMMONWEALTH of Pennsylvania v. Danny GLASCO, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 24, 1981.
    Filed April 16, 1982.

      Frank M. Jackson, Philadelphia, for appellant.
    Alan Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, WIEAND and JOHNSON, JJ.
   WIEAND, Judge:

Danny Glaseo was tried by a jury which found him not guilty of rape but guilty of simple assault, indecent assault, and involuntary deviate sexual intercourse. On direct appeal, Glaseo argues (1) that the verdicts were inconsistent, (2) that the prosecuting attorney improperly expressed an opinion concerning guilt, and (3) that the trial court erred in permitting a character witness to be asked on cross-examination regarding Glasco’s prior, unrelated arrests. There is merit in the last of these contentions; and, therefore, we reverse and remand for a new trial.

The charges against appellant arose from a single episode which occurred in appellant’s apartment during the early morning hours of July 29, 1978. Both appellant and the complaining witness testified regarding the sexual acts which occurred. The principal issue at trial was whether they were consensual or forced. Appellant argues, therefore, that the verdicts finding him guilty of involuntary deviate sexual intercourse and assault are inconsistent with the finding that he was not guilty of rape.

“[T]he law in Pennsylvania . . . long has been that inconsistencies in the jury’s verdict do not require the granting of a new trial so long as the evidence was sufficient to support the guilty verdicts that the jury did return.” Commonwealth v. Jackson, 230 Pa.Superior Ct. 386, 389-390, 326 A.2d 623, 626 (1974). Accord: Dunn v. United States, 284 U.S. 390, 393-394, 52 S.Ct. 189, 190-91, 76 L.Ed. 356 (1932); Commonwealth v. Strand, 464 Pa. 544, 547, 347 A.2d 675, 676-677 (1975); Commonwealth v. Reed, 458 Pa. 8, 11 n.2, 326 A.2d 356, 358 n.2 (1974); Commonwealth v. Carter, 444 Pa. 405, 408, 282 A.2d 375, 376-377 (1971); Commonwealth v. Rosetta, 266 Pa. Superior Ct. 543, 545, 405 A.2d 952, 953 (1979).

In determining whether the evidence presented at trial was sufficient to support the verdicts, we must view the evidence in the light most favorable to the Commonwealth as verdict winner and accept as true all of the evidence and reasonable inferences upon which, if believed, the jury could properly have based its verdict. Commonwealth v. Parker, 494 Pa. 196, 198, 431 A.2d 216, 217 (1981); Commonwealth v. Watson, 494 Pa. 467, 470, 431 A.2d 949, 950 (1981); Commonwealth v. Burns, 490 Pa. 352, 354, 416 A.2d 506, 507 (1980). The jury was entitled to draw reasonable inferences from the evidence, resolve any issues of credibility and believe all, part or none of the evidence presented. Commonwealth v. Stockard, 489 Pa. 209, 213, 413 A.2d 1088, 1090 (1980); Commonwealth v. Rose, 463 Pa. 264, 267-268, 344 A.2d 824, 826 (1975). So viewed, the evidence at appellant’s trial was sufficient to prove guilt beyond a reasonable doubt on charges of simple assault, indecent assault and involuntary deviate sexual intercourse.

Appellant contends that he is entitled to a new trial because the trial court erred in permitting the prosecuting attorney, over objection, to cross-examine a character witness regarding appellant’s prior arrests for unrelated offenses. The prosecuting attorney also inquired concerning the witness’ knowledge of an arrest which had occurred subsequent to the date of the offense for which appellant was being tried. Thus, although appellant had not been convicted of prior crimes, the jury learned that he had been arrested in 1972 for assault and battery with intent to ravish and rape, assault with intent to commit sodomy and solicitation to commit sodomy, and in 1977 for kidnapping, indecent assault, aggravated assault, simple assault, and unlawful restraint. In addition, the jury learned that approximately five months after the incident in question, appellant was arrested for rape. In his closing argument the prosecutor commented on appellant’s character witness’ testimony: “One can call a parish priest. One can call your neighbor. One can call somebody in the neighborhood who knows the defendant, but who does the defendant call; he calls his own brother. You have to decide how much weight you could give to reputation, especially in light of the cross-examination about [sic] Lee Glaseo about the defendant’s reputation in the community.” (N.T. 3.90-3.91)

The Supreme Court in Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981), abrogated the prior rule which permitted cross-examination of character witnesses concerning the defendant’s prior unrelated arrests. Chief Justice O’Brien, writing for a unanimous court, noted that “[d]espite any cautionary instruction the court may have given the jury, the undue prejudice to appellant is obvious .... Had appellant been convicted of the charges, it would be easier to say that he must suffer the consequences of placing his character at issue.” Id., 496 Pa. at 197, 436 A.2d at 611-612.

Although the instant case was tried prior to the decision in Scott, the issue of the propriety of cross-examining the character witness about appellant’s unrelated arrests has been preserved. Therefore, we are required to follow the holding in Scott and award a new trial.

Because we are required to award a new trial, for this reason, it is unnecessary that we consider appellant’s argument that during final summation the prosecuting attorney improperly expressed an opinion concerning appellant’s guilt.

Reversed and remanded for a new trial.

      . The trial court sustained demurrers to charges of recklessly endangering another person, making terroristic threats, and aggravated assault.

      . 18 Pa.C.S. § 2701.

      . 18 Pa.C.S. § 3126.

      . 18 Pa.C.S. § 3123.

      . The record discloses the following questions and answers during cross examination:
      Q: Did these people ever tell you he was arrested for rape on December 7th, 1978?
      A: No, they did not.
      Q: And he is your own brother, and no one ever told you that?
      A: Someone told me that Danny was arrested. That’s how I found out, but Danny’s friends did not tell me.
      Q: Did these people who you discussed his reputation in the community with for being a peaceful, law-abiding citizen ever tell you on November 7th, 1972 he was arrested for assault and battery with intent to ravish and rape; solicitation to commit sodomy; assault with intent to commit sodomy; and assault and battery with intent to ravish; did these people ever tell you that?
      A: No, they did not.
      Q: Did these people who you discussed the defendant’s reputation with ever tell you on June 17th, 1977 he was arrested for indecent assault; did they ever tell you that?
      A: No, they did not.
      Q: Did they ever tell you on June 17th, 1977 he was arrested for kidnapping and unlawful restraint?
      A: No, they did not.
      Q: Did they ever tell you on June 17th, 1977 he was arrested for simple and aggravated assault?
      A: No, they did not. (N.T. 2.22-2.24)


text:
    444 A.2d 727
    COMMONWEALTH of Pennsylvania v. Anthony HANKERSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 25, 1981.
    Filed April 16, 1982.

      Arthur K. Dils, Harrisburg, for appellant.
    Marion E. MacIntyre, First Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
    Before PRICE, WIEAND and LIPEZ, JJ.
   WIEAND, Judge:

Anthony Hankerson was tried before a jury and convicted of theft by unlawful taking and burglary. Following trial, the trial court vacated the conviction for theft by unlawful taking and sentenced Hankerson for burglary. On appeal, Hankerson argues that the evidence was insufficient to sustain the verdict and that the Commonwealth’s cross-examination of character witnesses concerning appellant’s pri- or arrests was error. Although we find the evidence sufficient to support appellant’s conviction for burglary, we are constrained to vacate the judgment of sentence and remand for a new trial in accordance with Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981).

In evaluating the sufficiency of the evidence, “we must view the evidence in the light most favorable to the Commonwealth as verdict winner, accept as true all the evidence and reasonable inferences upon which, if believed, the jury could properly have based its verdict, and determine whether such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt.” Commonwealth v. Parker, 494 Pa. 196, 198, 431 A.2d 216, 217 (1981). Accord: Commonwealth v. Watson, 494 Pa. 467, 470, 431 A.2d 949, 950 (1981); Commonwealth v. Burns, 490 Pa. 352, 354, 416 A.2d 506, 507 (1980); Commonwealth v. Kichline, 468 Pa. 265, 271, 361 A.2d 282, 285-286 (1976).

The record in the instant case, when so viewed, reveals that Thomas Kepler was the owner of a three unit apartment building at 1816 Green Street, Harrisburg. Two of the apartments were vacant and under renovation, and radiators had been disconnected and stored in the building while the owner negotiated for their .sale to an area businessman. Also stored in one of the apartments was a car battery owned by Kepler. On March 2, 1979, at approximately 2:00 p. m., Mrs. Rackley, who lived across the street from 1816 Green Street, observed two men enter the main door to the building. They reappeared shortly thereafter, carrying radiators and a car battery which they placed in a shopping cart. Mrs. Rackley called Kepler’s office and watched the two men as they pushed the shopping cart down the street. Although Kepler’s office notified the police, by the time the police arrived the men had disappeared. However, the shopping cart, radiators and battery were discovered a few blocks from the apartment building. Mrs. Rackley accompanied the police as they patrolled the immediate area, and a few minutes later, as appellant was walking along the street, Mrs. Rackley identified him as one of the two men she had seen removing the items from the building. After appellant had been placed under arrest, it was discovered that the door to one of the apartments had been broken and radiators and battery removed from the apartment. It was also established at trial that appellant had not been authorized to enter the apartment building. Appellant testified in his own behalf and denied entering the building or removing the radiators or battery.

The crime of burglary is defined in 18 Pa.C.S. § 3502 as follows:

§ 3502. Burglary
(a) Offense defined.—A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.

The jury was entitled to draw reasonable inferences from the facts presented, resolve any issues of credibility and believe all, part or none of the evidence. Commonwealth v. Stockard, 489 Pa. 209, 213, 413 A.2d 1088, 1090 (1980); Commonwealth v. Rose, 463 Pa. 264, 267—268, 344 A.2d 824, 825-826 (1975). When the evidence is considered in the light most favorable to the Commonwealth, it is clear that it was sufficient to support appellant’s conviction for burglary. See Commonwealth v. Yost, 478 Pa. 327, 332, 386 A.2d 956, 958-959 (1978); Commonwealth v. Robson, 461 Pa. 615, 625, 337 A.2d 573, 578 (1975).

Because two witnesses had testified on direct examination that appellant possessed a good reputation for being a peaceful, law abiding citizen, they were asked on cross-examination concerning their knowledge that appellant had been arrested for burglary in 1977 and rape in 1978. Appellant’s counsel moved for a mistrial because of the references to these arrests. The motion was denied.

In Commonwealth v. Scott, supra, the Supreme Court abrogated the prior rule which permitted character witnesses to be cross-examined regarding arrests, even when the arrests pertained to a character trait vouched for on direct examination, and held that such cross-examination was improper. Chief Justice O’Brien, writing for a unanimous court noted that “[djespite any cautionary instruction the court may have given the jury, the undue prejudice to appellant is obvious. On one hand, the jury would have heard that appellant had a reputation for being peaceful while on the other hand, the jury would also have heard that appellant had been arrested on two charges.” Id., 496 Pa. at 197, 436 A.2d at 611-612 (emphasis added). In the instant case, no cautionary instructions were given.

The Scott decision is controlling. Appellant had not previously been convicted of burglary or rape. To permit the prosecuting attorney to refer to arrests for such crimes was to permit appellant to be unfairly discredited. His motion for mistrial should have been granted.

Reversed and remanded for a new trial.

      . 18 Pa.C.S. § 3921.

      . 18 Pa.C.S. § 3502.

      . 18 Pa.C.S.'§ 3502(d) provides that “[a] person may not be convicted both for burglary and for the offense which it was his intent to commit after the burglarious entry or for an attempt to commit that offense, unless the additional offense constitutes a felony of the first or second degree.”

      . The Scott decision was handed down after the trial in the instant case.


author: OPINION BY WIEAND, Judge:

text:
    444 A.2d 729
    COMMONWEALTH of Pennsylvania v. Ronald JONES, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 24, 1981.
    Filed April 16, 1982.

      Julius E. Fioravanti, Philadelphia, for appellant.
    Alan Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, WIEAND and JOHNSON, JJ.
   OPINION BY WIEAND, Judge:

Ronald Jones was tried by a jury and found guilty of attempted burglary, criminal trespass and conspiracy. Post trial motions were denied, and appellant was sentenced for attempted burglary and conspiracy to concurrent terms of imprisonment for not less than four nor more than ten years. On direct appeal he contends that the evidence was insufficient to sustain the convictions and that trial counsel was variously ineffective. We find no merit in these arguments and affirm the judgments of sentence.

The evidence established that on September 21, 1978, at approximately 12:10 a. m., Police Officer Thomas Christy, in response to a call, arrived in the 2900 block of North Fifth Street in Philadelphia where he observed other policemen in front of 2907 and four or five figures on the roofs of 2907 and 2909. Having previously learned of a burglary in process, he went to the alley at the rear of the buildings and climbed to the roof of a home to the north of 2907. Moving across the rooftops, he saw several figures running on the roof of 2907. When one of the running persons came within twenty (20) feet of Christy, he caught him in the glow of his flashlight and ordered him to stop. He observed a black male, approximately 6'1" in height, wearing khaki colored trousers and shirt. Christy lost sight of this person but found him again moments later beneath him, in the alley between the homes. There he was hiding in a doorway. Appellant was arrested and taken into custody, together with another male who was also found hiding in the alley. A search of appellant’s person produced no incriminating evidence. However, examination of the premises at 2909 yielded two chisels, a hammer and a torch lying on the floor of the laundromat there housed. Above them was a hole which had been cut in the roof and from which a heavy rope had been suspended. Approximately $500 in coins had been forcibly removed from money boxes attached to machines on the premises.

“In appraising the sufficiency of evidence, we must apply a two-step test. First we must regard the evidence in the light most favorable to the Commonwealth, accepting as true all evidence upon which the fact finder could properly have based its verdict; then we must ask whether that evidence, with all reasonable inferences from it, was sufficient to prove guilt beyond a reasonable doubt.” Commonwealth v. Herriott, 265 Pa.Superior Ct. 143, 147, 401 A.2d 841, 843-44 (1979), quoting from Commonwealth v. Eddington, 255 Pa.Superior Ct. 25, 26, 386 A.2d 117, 117-18 (1978). The Commonwealth, although required to prove every essential element of the crime charged beyond a reasonable doubt, may rely upon circumstantial evidence to meet that burden. See Commonwealth v. Joyner, 489 Pa. 502, 505, 414 A.2d 1003, 1004 (1980); Commonwealth v. Holzer, 480 Pa. 93, 98, 389 A.2d 101, 104 (1978).

The evidence in the instant case, although circumstantial, was sufficient to sustain the convictions. Compare: Commonwealth v. Whalen, 189 Pa.Superior Ct. 351, 150 A.2d 133 (1959), cert. denied, 362 U.S. 944, 80 S.Ct. 809, 4 L.Ed.2d 772 (1960). Shortly after midnight, appellant was seen running across the roof of a building adjacent to a laundromat to which access had been gained through the roof. He was taken into custody by police while attempting to conceal himself in the doorway opening onto a neighboring alley. Inside the premises an attempt had been made to remove money from coin-operated laundry machines. These circumstances had greater probative value than mere presence at the scene of a crime. They were sufficient to enable a jury to infer that entry had been effected to commit the crime of theft and that appellant was a participant. Moreover, an attempt to flee or conceal oneself from the police is an additional circumstance from which guilt can be inferred. Commonwealth v. Whack, 482 Pa. 137, 142, 393 A.2d 417, 419 (1978); Commonwealth v. Osborne, 433 Pa. 297, 302-303, 249 A.2d 330, 333 (1969); Commonwealth v. Wilson, 294 Pa.Superior Ct. 101, 104, 439 A.2d 770, 771 (1982); Commonwealth v. Rough, 275 Pa.Superior Ct. 50, 62, 418 A.2d 605, 611 (1980).

Appellant’s remaining contentions pertain to the alleged ineffective assistance of counsel. He contends, first, that counsel had conferred with him only twice and, therefore, was inadequately prepared for trial. “It is well settled that ‘mere shortness of time spent in conference with a client does not per se establish ineffective assistance of counsel.’ ” Commonwealth v. Harper, 233 Pa.Superior Ct. 294, 299, 334 A.2d 761, 763 (1975), quoting Commonwealth v. Owens, 454 Pa. 268, 271, 312 A.2d 378, 380 (1973). See also Commonwealth v. Sisco, 482 Pa. 459, 393 A.2d 1197 (1978); Commonwealth v. Hill, 450 Pa. 477, 481 n.4, 301 A.2d 587, 590 n.4 (1973); Commonwealth v. Woody, 440 Pa. 569, 271 A.2d 477 (1970); Commonwealth v. Nero, 250 Pa.Superior Ct. 17, 24-25, 378 A.2d 430, 434 (1977). We have previously stated that “the time actually spent by counsel with the accused discussing his case is not necessarily related to, and affords no basis for inferring, the extent of total trial preparation.” Commonwealth v. Owens, supra 454 Pa. at 272, 312 A.2d at 381. See also Commonwealth v. Berry, 440 Pa. 154, 157, 269 A.2d 921, 923 (1970).

Appellant has not directed our attention to any evidence of unpreparedness on the part of trial counsel and from our own review of the record, we find no evidence of inadequate preparation or unfamiliarity with the facts on the part of trial counsel. Appellant’s allegations of inadequate preparation, therefore, are without merit.

Appellant next alleges that trial counsel was ineffective for not investigating and calling as witnesses appellant’s alleged co-conspirators. The failure to call witnesses, even alleged alibi witnesses, is not per se ineffectiveness of counsel. Commonwealth v. Owens, supra, 454 Pa. at 274, 312 A.2d at 381-382; Commonwealth v. Rainey, 282 Pa.Superior Ct. 15, 422 A.2d 652 (1980); Commonwealth v. Williams, 274 Pa.Superior Ct. 464, 472, 418 A.2d 499, 503 (1980); Commonwealth v. Olivencia, 265 Pa.Superior Ct. 439, 449, 402 A.2d 519, 523 (1979); Commonwealth v. Washington, 239 Pa.Superior Ct. 336, 344, 361 A.2d 670, 674 (1976). Appellant had the burden of establishing that trial counsel was ineffective, Commonwealth v. Bundridge, 268 Pa.Superior Ct. 1, 3, 407 A.2d 406, 408 (1979); Commonwealth v. Klaric, 263 Pa.Superior Ct. 286, 290, 397 A.2d 1212, 1213 (1979); Commonwealth v. Sweitzer, 261 Pa.Superior Ct. 183, 191, 395 A.2d 1376, 1380 (1978), and to do this he had to establish not only that counsel had knowledge of the alleged witness, Commonwealth v. Adams, 465 Pa. 314, 321, 350 A.2d 412, 416 (1976); Commonwealth v. Owens, supra, 454 Pa. at 272-273, 312 A.2d at 381; Commonwealth v. Ross, 273 Pa.Superior Ct. 67, 71, 416 A.2d 1092, 1094 (1979), but that the missing testimony would have been helpful. Commonwealth v. Adams, supra 465 Pa. at 321, 350 A.2d at 416; Commonwealth v. Williams, supra, 274 Pa.Superior Ct. at 472-473, 418 A.2d at 503-504; Commonwealth v. Yarbough, 248 Pa.Superior Ct. 356, 361-362, 375 A.2d 135, 138 (1977).

In the instant case counsel was aware of or could have ascertained the identity of those persons who' were arrested and charged with the same crime as appellant. However, appellant has failed to establish what, if any, testimony the witnesses would have given, or in what manner the testimony would have aided his cause. Trial counsel, therefore, cannot be deemed ineffective for his failure to call these witnesses. Commonwealth v. Johnson, 479 Pa. 60, 62, 387 A.2d 834, 835 (1978); Commonwealth v. Oliver, 280 Pa.Superior Ct. 274, 277, 421 A.2d 719, 721 (1980); Commonwealth v. Ross, supra, 273 Pa. Superior Ct. at 71, 416 A.2d at 1094.

Appellant next contends that trial counsel was ineffective for failing to withdraw as appellant’s counsel when appellant indicated to the trial court that he was dissatisfied with counsel’s representation. On March 19, 1979, the day appellant’s case was listed for trial, appellant requested that the court appoint a new attorney to represent him. Appellant stated that he wished to call his co-conspirators as witnesses but that his attorney had no plans to do so. Although he had not previously made this suggestion to counsel, he informed the court that he was dissatisfied with counsel’s investigation of the case. The trial judge conducted a colloquy with appellant and trial counsel, denied appellant’s motion for new counsel, and suggested that he discuss his case further with trial counsel before witnesses were to be called on the following day.

Trial counsel could not withdraw as counsel without leave of court under Pa.R.Crim.P. 302. Moreover, “whether a petition for change of court-appointed counsel should be granted is within the sound discretion of the trial court.” Commonwealth v. Segers, 460 Pa. 149, 154-155, 331 A.2d 462, 465 (1975). Appellant’s request for appointment of new counsel on the day trial was scheduled to commence, the 179th day under Rule 1100, was properly denied. “A motion for change of counsel by a defendant to whom counsel has been assigned shall not be granted except for substantial reasons.” Pa.R.Crim.P. 316(c)(ii). See also Commonwealth v. Chumley, 482 Pa. 626, 646 n.3, 394 A.2d 497, 507 n.3 (1978), cert. denied, 440 U.S. 966, 99 S.Ct. 1515, 59 L.Ed.2d 781 (1979); Commonwealth v. Rowe, 268 Pa.Superior Ct. 380, 381 n.1, 408 A.2d 516, 517 n.1 (1979). Counsel was not ineffective in failing to withdraw his appearance.

Appellant next argues that trial counsel was ineffective in failing to file a motion to dismiss under Rule 1100. Appellant had been arrested and a complaint had been filed on September 21, 1978. Trial commenced with the selection of a jury on March 19,1979, the 179th day following issuance of the complaint. Appellant’s claim for relief is of no arguable merit. Therefore, his trial counsel cannot be deemed ineffective for failing to file a nugatory Rule 1100 motion. See Commonwealth v. Juliano, 282 Pa.Superior Ct. 226, 230, 422 A.2d 1088, 1090 (1980). Counsel will not be deemed ineffective if the action which he failed to take would have been frivolous or futile. Commonwealth v. Metzger, 295 Pa.Superior Ct. 267,-, 441 A.2d 1225 (1981). See also Commonwealth v. Wilson, 482 Pa. 350, 353, 393 A.2d 1141, 1143 (1978); Commonwealth v. Ashley, 277 Pa.Superior Ct. 287, 291, 419 A.2d 775, 777 (1980).

Appellant next contends that trial counsel was ineffective in failing to move for dismissal of the Bills of Indictment and/or a mistrial after Officer Christy had testified to facts slightly different from those contained in the complaint which he had prepared following appellant’s arrest. The complaint stated that appellant was “in the process of cutting a hole in the roof of the laundromat at 2907 North Fifth Street when apprehended by police.” At trial, Officer Christy testified that he saw appellant running from the roof as he approached and later discovered appellant in the alley where he was arrested. Appellant’s trial counsel cross-examined Officer Christy extensively regarding this discrepancy.

The indictments contained all the essential elements of the crimes sought to be charged, which were identical to those alleged in the complaint, and adequately informed the appellant of the nature of the unlawful acts charged. There was no basis upon which to dismiss the indictments, and trial counsel was not ineffective for failing to make such a motion. Commonwealth v. Wilson, supra; Commonwealth v. Ashley, supra. Trial counsel was also correct in not moving for a mistrial following Officer Christy’s testimony. The discrepancy between the facts alleged in the complaint and Christy’s testimony provided no grounds for a mistrial but rather went to the weight to be accorded Officer Christy’s testimony at trial.

Appellant next alleges that his constitutional right to effective assistance of counsel was violated because trial counsel failed to challenge four jurors for cause. Appellant, who refused to participate in the selection of the jury, argues that a juror who had been a burglary victim, a juror who was acquainted with some police officers, and two jurors who had police officers as neighbors should have been challenged for cause. All four jurors were questioned by trial counsel and stated that they would be able to render a fair and impartial verdict. “In order to succeed in challenging a venireman for cause, appellant must show that the prospective juror had a bias or prejudice ‘that could not be readily set aside and would in fact influence and color his judgment.’ ” Commonwealth v. McBee, 267 Pa.Superior Ct. 49, 54-55, 405 A.2d 1297, 1300 (1979), quoting Commonwealth v. Hoss, 469 Pa. 195, 204, 364 A.2d 1335, 1340 (1976). There were in the instant case inadequate bases to sustain challenges for cause. The selection of a jury is a matter of trial strategy, and an attorney will not be found ineffective if his actions had some reasonable basis designed to effectuate his client’s interests. Commonwealth v. Sullivan, 472 Pa. 129, 141, 371 A.2d 468, 474 (1977); Commonwealth v. Round-tree, 469 Pa. 241, 248-249, 364 A.2d 1359, 1362 (1976); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). The record indicates that trial counsel questioned each juror concerning his relationships, bias and prejudices and was satisfied that each would render a fair and impartial verdict. Appellant’s argument to the contrary is groundless.

Appellant argues four more specific instances of alleged ineffective assistance of counsel which we find to be utterly devoid of merit. Counsel’s use of the words “ties this defendant to the crime” in his argument to the jury was a matter of trial strategy which in no way prejudiced appellant.

Appellant’s assertion that trial counsel should have filed additional pre-trial motions after a prior motion to suppress identification testimony was denied is also without merit. Indeed, appellant has not disclosed what additional pre-trial motions counsel should have filed or in what manner they would have aided his defense. Absent this information, there can be no finding of ineffectiveness. Commonwealth v. Johnson, supra, 479 Pa. at 62, 387 A.2d at 834-835 (1978).

Finally, appellant argues that trial counsel was ineffective for failing to submit points for charge on the issue of Officer Christy’s identification testimony and for failing to object to the trial judge’s summary of the evidence. The record reveals that the trial court correctly charged the jury regarding Officer Christy’s testimony and cautioned the jury that they were to trust their recollection of the evidence presented at trial in preference to the court’s summary. There were no grounds for an objection to the court’s charge. Therefore, the issues counsel is charged with failing to raise are without arguable merit. Commonwealth v. Betrand, 484 Pa. 511, 521, 399 A.2d 682, 687 (1979); Com monwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), later appeal, 485 Pa. 353, 402 A.2d 999 (1979).

The judgments of sentence are affirmed.

      . 18 Pa.C.S.A. §§ 901, 3502.

      . 18 Pa.C.S.A. § 3503.

      . 18 Pa.C.S.A. § 903.

      . At the hearing on the post trial motions, appellant admitted that he did not tell trial counsel that he wished to call his alleged co-conspirators as witnesses. He maintained that he had never met the alleged co-conspirators, did not know what their testimony would be or how it would aid his defense. Appellant first voiced a desire to call his co-conspirators as witnesses on the morning his trial was to commence, when he requested unsuccessfully that the court appoint new counsel to represent him.

      . Significantly, appellant was aware that it was the 179th day under Rule 1100. He had previously refused to sign a Rule 1100 waiver.


text:
    444 A.2d 735
    COMMONWEALTH of Pennsylvania v. Donald THOMAS, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 25, 1981.
    Filed April 16, 1982.
    Petition for Allowance of Appeal Denied July 1, 1982.

      Spero T. Lappas, Harrisburg, for appellant.
    Marion E. MacIntyre, First Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
    Before PRICE, WIEAND and LIPEZ, JJ.
   WIEAND, Judge:

Appellant, Donald Thomas, was convicted by a jury of robbery. Following denial of post-verdict motions, appellant was sentenced to a term of not less than four nor more than eight years imprisonment. In this direct appeal, appellant raises a novel issue concerning the time for arraignment under Pennsylvania Rules of Criminal Procedure 305 and 307. Although novel, the issue is lacking in merit. Therefore, we will affirm the judgment of sentence.

A full appreciation of appellant’s claim requires a review of the procedural background. On January 9, 1979, appellant was arrested and charged in connection with the January 3, 1979, armed robbery of a taxi-cab driver in Harrisburg, Dauphin County. On January 24, 1979, appellant’s court-appointed counsel requested a line-up, thus forcing the postponement of a preliminary hearing scheduled for the same date. The line-up was held on March 7, 1979. Thereafter, a preliminary hearing was held on March 28, 1979, at which time the Commonwealth established a prima facie case. Appellant was arraigned on June 6, 1979, and his jury trial commenced on June 29, 1979. Prior to trial, appellant filed a notice of alibi and a motion to dismiss because he could not be tried timely under Pa.R.Crim.P. 1100 if given thirty days after arraignment within which to file an omnibus pretrial motion. The motion to dismiss was denied.

On appeal, appellant contends that, by virtue of Pa.R. Crim.P. 307, he has an absolute right to a period of thirty days between arraignment and trial. We disagree. Rule 307 requires the filing of an omnibus pretrial motion within thirty days after arraignment, and provides as follows:

“Except as otherwise provided in these rules, the omnibus pretrial motion for relief shall be filed and served within thirty (30) days after arraignment, unless opportunity therefor did not exist, or the defendant or his attorney, or the attorney for the Commonwealth, was not aware of the grounds for the motion, or unless the time for filing has been extended by the court for cause shown.
“Copies of all pretrial motions shall be served either before or immediately following presentation.” Pa.R. Crim.P. 307.

Pa.R.Crim.P. 305 C(l)(a) provides a similar time requirement for the filing of a notice of alibi. These rules, however, do not prevent the commencement of trial within thirty days of arraignment. Rather, they speak “to the time period within which pretrial motions must be filed . . . but [they do] not expressly or by necessary implication preclude trying a case within that period.” Commonwealth v. Coleman, 280 Pa.Superior Ct. 162, 165, 421 A.2d 455, 457 (1980) (footnote omitted), petition for allowance of appeal denied, December 31, 1980.

In Coleman, the court observed that “trial of a case within thirty (30) days of arraignment might be prevented if the defendant were to object to such scheduling on the ground that he required part or all of the remainder of the filing period to present motions . . . . ” Id. Such was not the case here. There has been no suggestion that appellant needed the remaining period to file an omnibus pretrial motion; neither did appellant seek a continuance, as was his right under Pa.R.Crim.P. 301. He did, in fact, file notice of his intent to present an alibi defense and was expressly permitted to present alibi evidence at trial. If he required more time, he could have requested the same. This he did not do. Under such circumstances we will not construe Rules 305 and 307 as requiring a minimum time between arraignment and trial.

The logical extension of appellant’s argument, of course, is that a defendant must be arraigned within 150 days of the filing of the complaint in order that the Commonwealth can comply with the 180 day rule established by Pa.R.Crim.P. 1100. There is presently no such requirement, and we are disinclined to impose that additional burden upon the Commonwealth.

The judgment of sentence is affirmed.

      . 18 Pa.C.S. § 3701.

      . The reason for the delay in the conduct of the line-up is not explained by the present state of the record. In his brief, appellant charges that it was due to a misunderstanding between the District Attorney’s Office and the Harrisburg Police Department.


text:
    444 A.2d 736
    COMMONWEALTH of Pennsylvania v. Harry J. STARKS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 25, 1982.
    Filed April 16, 1982.

      Joseph C. Santaguida, Philadelphia, for appellant.
    Richard L. McMonigle, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   WIEAND, Judge:

Appellant, Harry J. Starks, was tried nonjury and convicted of murder in the third degree and criminal conspiracy in connection with the shooting death of Carl Sutton. Following the denial of post verdict motions, Starks was sentenced to concurrent terms of imprisonment. On appeal he contends (1) that the verdict was against the weight of the evidence; (2) that certain evidence was improperly received; and (3) that the trial court erred in refusing to allow him to withdraw his waiver of trial by jury. Our review convinces us that these claims are without merit; therefore, the judgments of sentence will be affirmed.

The relevant facts are these. On February 1, 1979, several armed men forcibly entered a residence at 1720 Reed Street in Philadelphia and announced a holdup. There were, in addition to the victim, two eyewitnesses to the incident, one of whom specifically identified appellant as a participant. This witness testified that appellant had pushed her into the kitchen, and that, while in the kitchen, she heard a “large noise” in her house. The second eyewitness testified that she had engaged in a scuffle with another of the intruders, during the course of which the victim, while descending the stairs from his second floor bedroom, was shot by yet another of the intruders. When the police arrived at the scene, the victim was found in the hallway of the premises. He was pronounced dead shortly thereafter by the medical examiner. Appellant presented two alibi witnesses, both relatives, who testified that appellant was elsewhere at the time of the robbery and shooting.

“The grant or refusal of a new trial on the grounds that the verdict was or was not against the weight of the evidence is generally committed to the sound discretion of the trial court. Commonwealth v. Zapata, 447 Pa. 322, 327, 290 A.2d 114, 117 (1972); Commonwealth v. Larew, 289 Pa.Super. 34, 432 A.2d 1037 (1981); Commonwealth v. Reidenbaugh, 266 Pa.Super. 315, 404 A.2d 697 (1978); Commonwealth v. James, 197 Pa.Super. 110, 177 A.2d 11 (1962).” Commonwealth v. Gillespie, 290 Pa.Superior Ct. 336, 342, 434 A.2d 781, 784 (1981). Where, as here, the weight to be given the evidence and the credibility to be accorded to the witnesses has been passed upon by the trial judge as trier of fact, his findings are entitled to the same weight as a jury verdict, and his refusal to grant a new trial on the grounds that the verdict was against the weight of the evidence will not be disturbed if supported by the record. Commonwealth v. Dawkins, 227 Pa.Superior Ct. 558, 561, 322 A.2d 715, 716 (1974). Our review of the record is persuasive that the trial court properly denied appellant’s motion for a new trial based on the weight of the evidence.

Appellant next challenges the admission into evidence of certain testimony provided by a Commonwealth witness, Penny Combs, an alleged eyewitness. This witness testified that after she had given statements placing appellant at the scene and had testified at the preliminary hearing, she received threats and was confronted on several occasions by appellant protesting his innocence. She testified that, as a result, she feared for her own safety. Appellant asserts that these statements constituted hearsay, prejudicial in effect, and should have been excluded. We disagree.

The case of Commonwealth v. Douglass, 185 Pa.Superior Ct. 269, 138 A.2d 193 (1958), cited by the Commonwealth, is instructive. In Douglass, the appellant had been charged with robbery in connection with the holdup of a barbecue business. The proprietress of the establishment had recognized the appellant as one of the participants in the robbery, and, on several occasions prior to and at trial, positively identified him as such. However, she failed to identify him at the hearing before the magistrate, and in fact testified that he was not the robber. At trial, she explained that she was aware of threats to her safety, thus prompting her to testify as she did at the hearing. The appellant argued that testimony by the robbery victim concerning such threats constituted inadmissible hearsay. In rejecting this claim the court stated: “[Tjhis evidence was not admitted to prove the truth of what was said. It was admitted to show that it was said. The important consideration, irrespective of the truth of the assertion, was the effect the [threat] had upon [the victim]. Did it put her in fear and thus cause her to testify as she did before the magistrate?” Id., 185 Pa.Superior Ct. at 275, 138 A.2d at 196.

The same principle applies to the instant case. The witness had, on several prior occasions, provided investigating officials with statements placing appellant at the scene. However, upon being confronted by appellant’s private investigator, she departed from her earlier statements, indicating uncertainty concerning appellant’s presence at the scene. Thus, her credibility was clearly at issue, and evidence pertinent thereto was relevant. As in Douglass, the testimony concerning the threats against the witness and her resulting fear was offered not for the truth thereof, but to explain the inconsistencies in her testimony. As such, this testimony was not inadmissible hearsay evidence. The trial judge, sitting as trier of fact, could properly receive this testimony and consider it in connection with the issue of the witness’ credibility. See, eg., Commonwealth v. Batty, 482 Pa. 173, 178, 393 A.2d 435, 438 (1978).

Appellant’s final claim pertains to the trial court’s refusal to permit him to withdraw his waiver of a jury trial. This request came in the form of a “motion to impanel a jury” after the Commonwealth had presented its entire case and had rested.

The record contains a lengthy jury trial waiver colloquy which fully complies with standards heretofore established for effective waiver. See: Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978); Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973); Commonwealth v. Fortune, 289 Pa.Superior Ct. 278, 433 A.2d 65 (1981). In fact, before accepting appellant’s waiver, the trial court, on several occasions, inquired of him as to whether his proffered waiver was the result of threats, force or promises. Appellant clearly responded that his decision to waive his right to a jury trial had been made by him, of his own free choice. (N.T., 1/22/80, pp. 16, 22). Appellant now contends that his waiver was based upon erroneous information provided by counsel concerning the expected testimony of a Commonwealth witness. Because that testimony was not as appellant had expected, and indeed fortified rather than weakened the Commonwealth’s case against him, appellant contends that he was entitled to withdraw his waiver and proceed before a jury. We reject this argument.

Rule 1102 sets forth the procedures to be followed when a jury trial is waived, and provides in pertinent part:

(b) At any time prior to the commencement of trial the defendant may withdraw his waiver of a jury trial. Thereafter, at any time prior to verdict the trial judge . . . may . . . permit the defendant, upon motion, to withdraw his waiver.

“It is clear from the language of this section that once trial has commenced a waiver may be withdrawn prior to verdict only where there is some reason to justify such a request.” Commonwealth v. Kennedy, 271 Pa.Superior Ct. 1, 9, 411 A.2d 1249, 1253 (1979). Further, a waiver may be withdrawn only with permission of the trial judge. Commonwealth v. Fulton, 268 Pa.Superior Ct. 547, 552, 408 A.2d 1138, 1140 (1979). See also: Annot., 46 A.L.R.2d 919. Appellant’s attempt to withdraw his waiver in the instant case came much too late. Moreover, he has failed to identify grounds which would have justified his request. The argument that his waiver was based on what proved to be an erroneous assumption as to the content of the Commonwealth’s case against him may be analogized to a claim of “disappointed expectations,” which will not support the withdrawal of an otherwise valid guilty plea. Cf. Commonwealth v. Waddy, 463 Pa. 426, 429, 345 A.2d 179, 180 (1975); Commonwealth v. Sanutti, 454 Pa. 344, 347, 312 A.2d 42, 45 (1973) (Disappointed expectations alone will not invalidate a guilty plea).

The judgments of sentence are affirmed.

POPOVICH, J., concurs in the result.

      . 18 Pa.C.S. § 2502.

      . 18 Pa.C.S. § 903.

      . In his statement of questions involved, appellant presented a claim based only upon the weight of the evidence. However, his argument alludes as well to the sufficiency of the evidence to support his convictions. While generally we consider only those issues contained in the statement of questions involved, Pa.R.A.P. 2116, our review of the record convinces us that the evidence was clearly sufficient to sustain appellant’s convictions of third degree murder and conspiracy.


text:
    444 A.2d 739
    COMMONWEALTH of Pennsylvania v. Willie LOWE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 2, 1981.
    Filed April 16, 1982.

      Daniel M. Pell, York, for appellant.
    Sheryl Ann Dorney, Assistant District Attorney, York, for Commonwealth, appellee.
    Before BROSKY, WIEAND and MONTEMURO, JJ.
   WIEAND, Judge:

Willie Lowe, 61 years of age, was convicted by a jury of committing an aggravated assault. Post trial motions were denied, and a sentence of imprisonment was imposed for not less than five nor more than ten years. An appeal was filed in the Superior Court but was dismissed when counsel, a member of the Public Defender’s staff, failed to pursue it. Thereafter, Lowe filed a PCHA petition alleging that counsel had been ineffective for failing to pursue his appeal in the Superior Court and requesting leave to file an appeal nunc pro tunc. New counsel was subsequently appointed, and he caused to be filed an amended PCHA petition. The only averment contained in the amended petition was that prior counsel had been ineffective for failing to pursue Lowe’s appeal; and the only relief requested was the reinstatement of Lowe’s right of direct appeal. After hearing, the trial court granted the requested relief. On direct appeal, appellant raises two issues.

His first contention is that the trial court erred by refusing a motion to interrupt the trial, after the Commonwealth’s case had been presented, and appoint a psychiatrist to examine appellant in order to determine his competency to cooperate with counsel during presentation of the defense. This issue was preserved for review by appellant’s motion for new trial and is properly before this Court on appeal. Appellant’s contention, however, is lacking in merit. In the first place, appellant’s motion for the appointment of a psychiatrist was neither properly nor timely filed. Pa.R. Crim.P. 307 requires that an omnibus pre-trial motion, including a motion for psychiatric examination, be filed within thirty days after arraignment, “unless opportunity therefor did not exist, or the defendant or his attorney . . . was not aware of the grounds for the motion, or unless the time for filing has been extended by the court for cause shown.” Rule 306(a), moreover, requires that the motion be in writing. Failure to include a ground for relief in the omnibus pre-trial motion shall constitute a waiver of that ground. Pa.R.Crim.P. 306(e).

The record of the sidebar conference at which the defense motion was made discloses clearly that there were no exceptional circumstances to excuse appellant’s failure to proceed pre-trial. Defense counsel, who had not spoken with appellant between the preliminary hearing and the morning of trial, gave as his reason for the request the need to decide whether appellant should be allowed to testify. Thus, he said:

“. . . I am now faced with the decision of whether or not to put Mr. Lowe on the stand, and I think it’s obvious, at least to me and I think to the Court and to the district attorney, that Mr. Lowe’s behavior has been somewhat abnormal throughout this trial. And, I think, not being a psychiatrist of any kind, his behavior does raise a doubt in my mind as to his competency at the present time. Like I say, I’m faced with whether or not to put him on the stand. I want to, but, his present medical condition, I don’t know if he’s going to be able to testify in a proper manner. At this time, I would request that we deal with the competency issue.”

Under these circumstances, the trial court could have treated the request of defense counsel as untimely, procedurally improper, and not then properly before it for consideration. Instead, the trial judge excused the jury and questioned appellant extensively about his understanding of the proceedings and his ability to proceed. Appellant’s answers to the judge’s questions were lucid, evidenced a clear comprehension of the proceedings and demonstrated an eagerness to testify that his use of a knife had been to protect himself against an assault committed by the alleged victim. The record, in brief, contains no basis whatsoever on which the trial judge could have aborted the trial in response to defense counsel’s uncertainty about appellant’s ability to testify properly. The trial court’s ruling, therefore, did not constitute error.

Appellant’s second contention is that trial counsel was ineffective for failing to assert an insanity defense at trial. This issue has been raised for the first time in the brief filed in this Court by appellate counsel. It was not alleged in the amended PCHA petition prepared and filed by appellate counsel, and no evidence on this issue was received by the PCHA court. Therefore, we are required to determine preliminarily whether this issue is properly before us.

We conclude that this issue has been waived. This is not the first proceeding in which appellant has been represented by counsel other than his trial counsel. He was represented by newly appointed counsel when the PCHA petition was filed and heard by the court below. Indeed, it was present counsel who prepared the amended PCHA petition which was the basis for hearing before the court below. The issue of trial counsel’s ineffectiveness for failing to assert an insanity defense, however, was not raised. It was not alleged in the PCHA petition, and no evidence relevant to such issue was offered in the proceedings before the hearing court. If this issue had been presented properly, this Court would have before it a full record and would be able to review the ineffectiveness of counsel claim in the instant appeal. See and compare: Commonwealth v. Miranda, 296 Pa.Superior Ct. 441, 442 A.2d 1133 (1982); Commonwealth v. May, 296 Pa.Superior Ct. 435, 442 A.2d 1129 (1982); Commonwealth v. Clark, 296 Pa.Superior Ct. 315, 442 A.2d 786 (1982). See also: Commonwealth v. Sullivan, 472 Pa. 129, 140 n.5, 371 A.2d 468, 473 n.5 (1977). Unfortunately, appellant’s failure to raise the issue in a timely manner has produced a record which is blank and wholly inadequate to permit a review of trial counsel’s stewardship. Having failed to raise the issue at the first available opportunity, therefore, the issue has been waived. See: Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975); Commonwealth v. Lewis, 276 Pa.Superior Ct. 451, 419 A.2d 544 (1980); Commonwealth v. Wetzel, 276 Pa.Superior Ct. 445, 419 A.2d 541 (1980); Commonwealth v. Jenkins, 273 Pa.Superior Ct. 227, 417 A.2d 251 (1979); Commonwealth v. O’Brien, 273 Pa.Superior Ct. 198, 417 A.2d 236 (1979). We will not remand to give appellant a second opportunity to allege ineffectiveness of counsel and present evidence which should have been raised and presented to the court below when it received evidence and decided appellant’s amended PCHA petition.

The judgment of sentence is affirmed.

BROSKY, J., concurs in the result.

      . Our review of the record discloses no substantial abnormality in appellant’s behavior during trial. On several occasions during cross-examination of Harold Price, the alleged victim of the assault, appellant answered aloud when the witness did not give immediate responses to questions asked. On other occasions, he shook his head and laughed during such cross-examination. This occurred on only four pages of the transcript of such cross-examination, however, and ceased promptly when- the trial judge told appellant that he would have a chance to speak at a later time. This is not the type of conduct which, without more, depicts a mentally incompetent defendant.

      . These facts distinguish the instant case from Commonwealth v. Smith, 227 Pa.Superior Ct. 355, 324 A.2d 483 (1975). Contrary to appellant’s contention, the Smith decision is neither apposite nor controlling.

      . The record discloses that the defense relied upon at trial was self-defense. Whether a defense of insanity could have been advanced compatibly therewith or whether such a defense had greater potential for success than the defense offered cannot be determined from the present record.