author: DiSALLE, Judge:

text:
    436 A.2d 1201
    COMMONWEALTH of Pennsylvania, v. William Gerald McCONNELL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 21, 1981.
    Filed Nov. 6, 1981.
    Petition for Allowance of Appeal Denied Jan. 29, 1982.

      J. Wesley Oler, Jr., Assistant Public Defender, Carlisle, for appellant.
    Edgar B. Bayley, District Attorney, Carlisle, for Commonwealth, appellee.
    Before HESTER, DiSALLE and POPOVICH, JJ.
   DiSALLE, Judge:

Appellant, William McConnell, was convicted by a jury on the charge of retail theft. This direct appeal followed the denial of appellant’s post-trial motions and entry of the judgment of sentence.

Appellant’s first contention is that the evidence was insufficient to prove his intent to steal the goods. The test for determining the sufficiency of the evidence is whether the evidence, viewed in the light most favorable to the Commonwealth as the verdict winner, and drawing all inferences therefrom, is sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. McKee, 269 Pa.Super. 568, 410 A.2d 847 (1979). Criminal intent may be proven by circumstantial evidence. Commonwealth v. Bonn, 244 Pa. Super. 315, 368 A.2d 738 (1976).

Here, the Commonwealth’s witnesses testified that appellant entered Hess’s Department Store and walked directly into the store’s domestics department, where he browsed for about five to eight minutes. During that time, appellant picked up a blanket and placed it under his arm. Appellant then walked into the store’s furniture department and after twenty or thirty seconds left the store, the blanket still under his arm. He was apprehended in the parking lot twenty or thirty feet outside the store. Appellant testified that he was daydreaming and had inadvertently left the store without paying for the blanket. He claimed that he was returning to the store to pay for the blanket when he was apprehended. We find the evidence sufficient to prove appellant’s intent to commit retail theft.

Appellant’s reliance upon Commonwealth v. Shapiro, 223 Pa.Super. 15, 297 A.2d 161 (1972), is misplaced, in Shapiro the defendant’s testimony was consistent with the testimony of the Commonwealth’s witness. The defendant was in the store for a substantial period of time, and had purchased other items. In the present case, the appellant’s testimony contradicted most of the Commonwealth witnesses’ testimony. The appellant was in the store only briefly and had not purchased any other items.

Appellant’s next several contentions are without merit. Appellant contends that the lower court erred in refusing to instruct the jury (1) that evidence of intoxication could be considered in determining the existence of appellant’s intent to steal; (2) that absence of motive was a factor to be considered; and (3) that conflicting testimony was not necessarily to be resolved on the basis of the number of witnesses and amount of evidence.

Appellant’s requested instruction concerning intoxication was contrary to 18 Pa.C.S.A. § 308 (Supplementary Pamphlet 1974 to 1980) which states:

Neither voluntary intoxication nor voluntary drugged condition is a defense to a criminal charge, nor may evidence of such conditions be introduced to negative the element of intent of the offense....

Thus, appellant’s requested instruction on intoxication was properly refused. We reject appellant’s vague argument that § 308 is unconstitutional. Commonwealth v. Hess, 270 Pa.Super. 501, 411 A.2d 830 (1979) and Commonwealth v. Ruff, 266 Pa.Super. 497, 405 A.2d 929 (1979). It is to be noted that, although appellant testified that he had been drinking on the morning prior to his arrest, he denied he was intoxicated.

Appellant’s second requested instruction, concerning motive, was also correctly refused. While sometimes relevant factually, motive is not an element of the crime of retail theft. See Commonwealth v. Holland, 480 Pa. 202, 389 A.2d 1026 (1978).

The lower court’s refusal to give the number of witnesses and amount of evidence instruction was also correctly refused because these matters had previously been covered. Therefore, the appellant was not prejudiced by the court’s refusal. Commonwealth v. Boone, 467 Pa. 168, 354 A.2d 898 (1976).

Appellant’s final contention is that his sentence was manifestly excessive. This conviction was at least appellant’s third conviction for retail theft. The sentence imposed by the lower court, that appellant be imprisoned for one and one-half to five years, was within statutory limits. 18 Pa.C.S.A. § 3929(b); 18 Pa.C.S.A. § 1103. The sentencing record shows that the lower court complied with all sentencing requirements. Commonwealth v. Wareham, 259 Pa.Super. 527, 393 A.2d 951 (1978); Commonwealth v. Straw, 238 Pa.Super. 535, 361 A.2d 427 (1976) allocatur refused. The lower court, on the record, considered appellant’s visual problems, his age, his family and employment situations, the seriousness of the offense, the pre-sentence report, appellant’s numerous prior convictions for the same offense, and adequately stated its reasons for sentencing appellant.

Judgment of sentence affirmed.

      . The record indicates that appellant’s prior criminal record for retail theft includes approximately thirteen prior offenses dating back to 1968.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    436 A.2d 1203
    COMMONWEALTH of Pennsylvania, v. Andrew KELLER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed Nov. 6, 1981.

      Patrick J. Flannery, Assistant Public Defender, Wilkes-Barre, for appellant..
    Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an Order of the Court of Common Pleas of Luzerne County denying post-conviction relief without a hearing. We affirm.

The record reflects the following procedural history:

On January 22, 1979, appellant, Andrew Keller, entered a counseled plea of guilty to the charges of receiving stolen property and false reports to law enforcement authorities. On March 16,1979, he was sentenced to concurrent terms of imprisonment of one to five years minus one day and one to two years, respectively. Ten days later, appellant filed a timely direct appeal to this Court, which was later withdrawn. On June 26, 1979, appellant’s motion for resentencing, requesting a transfer from the county prison to a state correctional institution, was granted. Subsequently, appellant also filed a petition to vacate and reconsider sentence which was denied.

On February 8, 1980, appellant filed a pro se Post Conviction Hearing Act petition. Counsel was appointed, and an amended petition was filed on February 26th. The court entertained oral argument on the petition on March 24 and denied the relief requested. This appeal followed.

Appellant first contends that he may withdraw his guilty plea because the trial court failed to inform him at sentencing that a petition to withdraw a guilty plea must be filed within ten (10) days of the imposition of sentence. See Pa.R.Crim.P. 1405(c)(3). We, however, cannot review the merits of this claim because it has been waived.

In order for a defendant to be eligible to obtain relief under the Post Conviction Hearing Act, “the petitioner must establish, inter alia, that the claim upon which he seeks relief, ‘has not been finally litigated or waived’ ”. Commonwealth v. Lochman, 265 Pa.Super. 429, 432-434, 402 A.2d 513, 515-6 (1979). Under that Act, an issue is waived if:

“(1) The petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this Act; and
(2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.

19 P.S.A. 1180-4(b) (1981-2) (Emphasis added).

To begin with, in the instant case, appellant for the first time argues on appeal to our Court that his guilty plea was induced unlawfully because the trial court failed to advise him of his right to withdraw the guilty plea within ten (10) days of the imposition of sentence. In appellant’s counseled petition, he alleged the following: (1) his confession was coerced by the police; (2) evidence was obtained as a result of an unconstitutional search and seizure; (3) his guilty plea was entered involuntarily because of his failure to understand the nature of the charges against him; and (4) his guilty plea was induced unlawfully by a coerced confession. The claim concerning appellant’s right to be advised of his right to withdraw the guilty plea at sentencing was not raised in appellant’s counseled PCHA petition.

In Commonwealth v. Mitchell, 477 Pa. 274, 280-1, 383 A.2d 930, 933 (1978), our Supreme Court “refuse(d) to consider anything not raised in a counseled petition. See Pa.R. Crim.P. 1506(4).” Accord Commonwealth v. Wilson, 482 Pa. 350, 354, 393 A.2d 1141, 1144 (1978); Commonwealth v. Robinson, 253 Pa.Super. 496, 501, 385 A.2d 448, 451 (1978). Likewise, when this Court was examining a similar contention, we said: We also find that because appellant “did not raise this issue (i. e., whether he is entitled to withdraw his guilty plea because the trial court failed to advise him of his right to file a motion to withdraw the plea within 10 days of the imposition of sentence) anywhere below in the PCHA proceedings”, the issue is waived. Commonwealth v. Robinson, Id. Accord Commonwealth v. LaSane, 479 Pa. 629, 631-632, 389 A.2d 48, 49-50 (1978); Commonwealth v. Logue, 277 Pa.Super. 106, 419 A.2d 683, 684 (1980).

“Appellant now argues on appeal to our court that his guilty plea was unlawfully induced because he was not informed by the lower court that a guilty plea would result in a waiver of the right to subsequently raise various issues (unlawful arrest, unlawful search and seizure, double jeopardy, and violation of Rule 1100). Our Supreme Court has held that where the court below has not had a proper opportunity to decide a question, the question will not be decided on appeal. Commonwealth v. Bittner, 441 Pa. 216, 221, 272 A.2d 484 (1971). In the case before us, appellant, although represented by counsel at the time did not raise this issue anywhere in the PCHA proceedings. This issue is therefore waived.” Commonwealth v. Robinson, Id.

In certain situations, the theory of waiver is inapplicable where a petitioner is able to prove the existence of “extraordinary circumstances” excusing one’s failure to raise the issue below. See 19 P.S.A. § 1180-4(b)(2). Most notably, “extraordinary circumstances” have been found to exist where a claim of the ineffective assistance of counsel was raised, see e. g., Commonwealth v. Watlington, 491 Pa. 241, 420 A.2d 431 (1980); Commonwealth v. Gans, 271 Pa.Super. 193, 412 A.2d 642 (1979); Commonwealth v. Martin, 258 Pa.Super. 412, 392 A.2d 860 (1978), or where appellant’s PCHA petition was filed without the advice of counsel. See Commonwealth v. Fiero, 462 Pa. 409, 341 A.2d 448 (1975). Neither issue is present in this case as counsel’s effectiveness is not challenged, see Brief for Appellant at 4: “Petitioner does not allege denial of his constitutional right to representation by a competent lawyer.”); and appellant’s amended PCHA petition was filed below with counsel’s advice.

Appellant next argues that the trial court should have conducted a hearing on the following claims: (1) the evidence was obtained as a result of an illegal search and seizure; (2) his confession was coerced; and (3) his guilty plea was induced unlawfully because it was “primarily induced or motivated by the existance [sic] of the confession and the illegally obtained evidence.” Brief for Appellant at 8.

With respect to these issues, we conclude that the first two issues mentioned above are waived because by entering a plea of guilty, appellant has “waive[d] the right to challenge anything but the legality of his sentence and the validity of his plea.” Commonwealth v. Montgomery, 485 Pa. 110, 113, 401 A.2d 318, 319 (1979) (citations omitted). Although an allegation that a guilty plea was induced by constitutionally infirm evidence may be cognizable in a PCHA proceeding, see Commonwealth v. Williams, 485 Pa. 137, 140, 401 A.2d 331, 333 (1979), appellant only asserted below that his plea was induced by the confession; therefore, he can raise that ground only before us. See Commonwealth v. Logue, supra. Insofar as appellant’s claim that the plea was motivated by the coerced confession is preserved, we must remember that:

“a defendant who wishes to set aside a guilty plea must successfully demonstrate all of the following: (1) the existence of constitutionally infirm incriminating evidence; (2) that his guilty plea was primarily motivated by such evidence; and (3) that defendant was incompetently advised by counsel to plead guilty rather than stand trial.” Commonwealth v. Marsh, 460 Pa. 253, 255, 333 A.2d 181, 182 (1975) (Marsh III) (emphasis added). Accord Commonwealth v. Maute, 263 Pa.Super. 220, 224, 397 A.2d 826, 828 (1979).

In the case before us, appellant has not alleged the ineffective assistance of counsel, and thus, “we need not decide whether the remaining criteria have been satisfied.” Commonwealth v. Maute, 263 Pa.Super. at 225, 397 A.2d at 828; See also Commonwealth v. Marsh, 440 Pa. 590, 592, 271 A.2d 481, 483 (1970) (Marsh I).

The order of the court below is affirmed.

      . This motion was in the nature of a request for parole, the basis for which was the need to support appellant’s children and the terminal illness of his mother.

      . The Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S.A. § 1180-1 et seq. (1981-2).

      . As our Supreme Court has said:
      “Appellate Courts render a disservice to judicial economy and the efficient operation of our court system where they freely accept issues that could have and should have been first presented to the courts below for their consideration.” Commonwealth v. Mitchell, 464 Pa. 117, 123, 346 A.2d 48, 52 (1975) (quoting Commonwealth v. Reid, 458 Pa. 357, 358, 326 A.2d 267, 268 (1974)). Accord Commonwealth v. Waters, 248 Pa.Super. 123, 127, 374 A.2d 1348, 1351 (1977).

      . Inasmuch as the stewardship of Patrick J. Flannery, Esq., appellant’s attorney from the Public Defender’s Office of Luzerne County, was not questioned, the trial court need not assign a different attorney to assist appellant at the PCHA proceeding “given the claim made by appellant.” Commonwealth v. Cooke, 288 Pa.Super. 205, 208 ftn. 5, 431 A.2d 360, 362 ftn. 5 (1981); Accord Commonwealth v. Jennings, 285 Pa.Super. 295, 298 ftn. 2, 427 A.2d 231, 232 ftn. 2 (1981). For edification purposes, we note that “[w]hile an indigent is entitled to free counsel, he is not entitled to counsel of his own choosing.” Commonwealth v. Chumley, 482 Pa. 626 at 646 ftn. 3, 394 A.2d 497 at 507 ftn. 3 (1978).

      . Even assuming under arguendo, that the remaining criteria could be considered under Commonwealth v. Marsh, supra, Marsh I (i. e., if
      the incriminating evidence was constitutionally infirm or if the plea was primarily motivated by that evidence), we have engaged in an independent review of the record and also conclude that the issues raised before this Court and before the court below have no substantive merit.
      In its opinion, the trial court said that appellant was not entitled to relief on the issues presented in the PCHA petition, as stated infra at 3, because inter alia, “Petitioner has failed to (and henceforth cannot) question the competency of his Counsel.” Trial court opinion at 3. Although we agree that appellant’s attack on whether his guilty plea was induced improperly cannot be considered because appellant “has failed to ... question the competency of his Counsel,” trial court opinion at 3, this Court disagrees with the statement that appellant “henceforth cannot” question counsel’s competency. See e. g., Commonwealth v. Dimitris, 484 Pa. 153, 398 A.2d 990 (1979); Commonwealth v. Hubbard, 472 Pa. 259 ftn. 6, 372 A.2d 687, 695 ftn. 6 (1977); Commonwealth v. Reider, 267 Pa.Super. 359, 364, 406 A.2d 1081, 1084 (1979), Commonwealth v. Maute, supra.
      We also note that the PCHA court has filed a comprehensive opinion dismissing appellant’s claims (i. e., the search and seizure were illegal, his confession was coerced, his guilty plea was induced by the existence of the coerced confession and appellant failed to understand the nature of the charges against him) because of waiver and on the substantive merits. However, we have concluded that appellant’s attack on his guilty plea could not be set aside for different reasons than those set forth by the trial court. Although we have relied in part on grounds different from those stated in the trial court, this Court on appeal “may affirm the action of a lower court on a different rationale than that advanced by the lower court ... . ” Commonwealth v. Meischke, 273 Pa.Super. 134, 139 ftn. 3, 416 A.2d 1126, 1128 ftn. 3 (1979); See also Commonwealth v. Allsup, 481 Pa. 313, 316, 392 A.2d 1309, 1311 (1978).


text:
    436 A.2d 1207
    COMMONWEALTH of Pennsylvania, v. John WHITTAKER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed Nov. 6, 1981.
    Petition for Allowance of Appeal Denied Jan. 29, 1982.

      Frank Bognet, Hazleton, for appellant.
    Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

The only issue appellant, John Whittaker, raises in this appeal is whether the post-conviction hearing court properly dismissed his post-conviction hearing act petition without conducting a hearing. See the Act of January 15,1966, P.L. (1965) 1580 § 1 et seq., 19 P.S.A. § 1180-1 et seq. (1981-2). More specifically, appellant contends that a hearing is necessary because “the record clearly demonstrates (1) that the Petitioner reluctantly entered his guilty pleas; and (2) that his (public defender) counsel was confused as to the amount of ‘back-time’ the defendant would be required to serve (on prior convictions) as a result of the guilty pleas.” Brief for Appellant, at 6. We cannot agree.

First of all, appellant’s challenge to the voluntariness of his guilty plea is waived as that issue should have been raised previously before the trial court in a motion to withdraw the guilty plea. See Commonwealth v. Lantzy, 284 Pa.Super. 192, 200, 425 A.2d 768, 772 (1981); Commonwealth v. Maute, 263 Pa.Super. 220, 397 A.2d 826 (1979). If that was unsuccessful, appellant could have raised the issue on direct appeal. Commonwealth v. Allen, 278 Pa.Super. 501, 507, 420 A.2d 653, 656 (1980). Since that objection was not raised, it is waived unless appellant demonstrates extraordinary circumstances precluding waiver. Commonwealth v. Allen, supra.

Although inartfully framed, appellant’s second allegation is an attack on trial counsel’s ineffectiveness for being “confused” at the sentencing proceeding. See also the Sentencing Transcript, (10/25/78), at 2-3. There being no waiver with respect to trial counsel’s ineffectiveness, see Commonwealth v. Maute, supra, we must consider whether an evidentiary hearing was required to determine the validity of appellant’s claim. This Court has said:

“Appellant’s claims of ineffectiveness must be evaluated in the context of his guilty plea. Upon entry of a plea of guilty, all grounds of appeal are waived other than challenges to the voluntariness of the plea and the jurisdiction of the sentencing court. Commonwealth v. Greer, 457 Pa. 646, 326 A.2d 338 (1974). Thus allegations of ineffective assistance of counsel in connection with entry of the guilty plea will serve as a basis for relief only if the ineffectiveness caused appellant to enter an involuntary or unknowing plea. See Commonwealth v. Jones, 477 Pa. 266, 383 A.2d 926 (1978); Commonwealth v. Bunch, 466 Pa. 22, 351 A.2d 284 (1976).” Commonwealth v. Chumley, 482 Pa. 626, 641—42, 394 A.2d 497, 504-5 (1978) (emphasis added).

Because appellant has failed to show in what way counsel’s “confusion” at the sentencing hearing “caused appellant to enter an involuntary or unknowing plea,” Commonwealth v. Chumley, Id, appellant was not entitled to an evidentiary hearing. See Section 9 of the PCHA Act (“the court may deny a hearing if the petitioner’s claim is patently frivolous and is without a trace of support... in the record....). In any event, a review of the record reveals that whatever “confusion” existed at the sentencing hearing was considered by the court when the sentence was imposed. Sentencing Transcript (10/25/78) at 3. Hence, appellant’s allegation is patently frivolous and without support in the record.

Appellant finally suggests that “judicial economy would be promoted if a mandatory hearing were provided in all, or nearly, all, cases where ineffective assistance of counsel or voluntariness of plea is at issue (in a first Post Conviction Hearing Act Petition).” Brief for Appellant, at 14 (emphasis in original). We must decline appellant’s invitation to overrule Section 9 of the Post Conviction Hearing Act and the cases of this jurisdiction which state that:

“the right to a hearing on a PCHA petition is not absolute. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978); Commonwealth v. Cimaszewski, 234 Pa.Super. 299, 339 A.2d 95 (1975); Commonwealth v. Hayden, 224 Pa.Super. 354, 307 A.2d 389 (1973).” Commonwealth v. Miller, 275 Pa.Super. 236, 238, 418 A.2d 700, 701 (1980).

Therefore, we will not disturb the order of the court below which dismissed appellant’s petition without a hearing.

      . On November 29, 1978, appellant filed a direct appeal to this Court. The judgment of sentence was affirmed Commonwealth v. Whittaker, 275 Pa.Super. 617, 423 A.2d 1322 (1979). The only issue raised in the previous appeal concerned the legality of appellant’s sentence.

      . Even assuming arguendo, that the issue of appellant’s reluctance to enter a plea of guilty was not waived, a review of the court’s colloquy at the guilty plea hearing indicates that the court was cautiously deliberate in conducting the colloquy, and that appellant’s plea was entered without reluctance. The colloquy reveals the following:
      “THE COURT: All right. As I was saying, I’ve taken the time to carefully ask you a series of questions concerning the matters before the Court. You have indicated to me that all of these questions have been answered knowingly, intelligently, and this has been completely voluntary on your part.
      In the past, other people just like yourself have told me the same thing and then later on they come back and tell me that actually, they didn’t mean what they were telling me because their lawyer or somebody else told them how to answer the questions to the Judge and to tell the Court that the answers were voluntary, knowingly and intelligently made.
      Now, so there’s no misunderstanding, I’m asking you now whether or not anyone prompted you or told you what to tell me and whether or not the answers you have now given me are completely voluntary and that you fully understand everything that has transpired? So there’s no misunderstanding, are there any other answers you want to tell me now, or are there any other questions you want to ask me?
      THE DEFENDANT: No, sir.”
      Guilty Plea Transcript (9/5/78), at 15-16.

      . After the filing of appellant’s pro se PCHA petition, the court below prudently assigned a private attorney to represent appellant because up until that time, appellant had been represented by the Public Defender’s Office of Luzerne County and he had raised a claim of prior counsel’s ineffectiveness. See Commonwealth v. Jennings, 285 Pa.Super. 295, 298 ftn. 2, 427 A.2d 231, 232 ftn. 2 (1981). The issue of trial counsel’s ineffectiveness, therefore, was not waived as the PCHA stage was the “earliest stage in the proceedings at which the counsel whose ineffectiveness [was] being challenged no longer represented] the defendant.” Commonwealth v. Hubbard, 472 Pa. 259, 276 n.6, 372 A.2d 687, 695 n. 6 (1977).
      Our independent review of the record discloses that a document “inadvertently” was omitted from the factual accounting of the parties as set forth in the briefs. That document, a second pro se PCHA petition, was filed after the appeal was taken to this Court. The court below correctly noted, in an opinion also not referred to be the parties, the possibility that it lacked jurisdiction to entertain the second pro se petition because the matter was pending on appeal before this Court at that time. See e. g., Commonwealth v. Leather-bury, 269 Pa.Super. 194, 197 ftn. 4, 409 A.2d 431, 433 ftn. 4 (1979).

      . In a brief, appellant also argues that the opinion of the court below “is largely self-serving. It does not address itself to the critical questions raised:
      (a) Why would the Defendant want to appeal such a light sentence? Sentencing [sic] Transcript, p. 9.
      (b) Why was trial counsel confused as to the ‘back time’ still to be served? Sentencing Transcript, p. 2, 3.
      (c) Why was the Defendant continuously protesting his innocence during the guilty plea colloquy? See Guilty Plea Transcript of 9/5/78 at p. 7, 8.” Brief for appellant at 13.
      First of all, any claim concerning appellant’s “light” sentence was cognizable on appellant’s previous direct appeal to this Court. Hence, this issue is not properly preserved. The claim concerning trial counsel’s confusion, as discussed supra at 1209, must have caused the entry of appellant’s guilty plea in order to serve as a basis for relief. See Commonwealth v. Chumley, supra. Third, appellant’s challenge to his plea of guilty, as discussed infra at 2, is waived because appellant should have raised the issue on a previous occasion.


author: SHERTZ, Judge:

text:
    436 A.2d 1209
    COMMONWEALTH of Pennsylvania, v. Robert CARVER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 14, 1980.
    Filed Nov. 6, 1981.

      John H. Corbett, Jr., Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CERCONE, President Judge, and SHERTZ and WIEAND, JJ.
   SHERTZ, Judge:

Robert Carver was found guilty of Criminal Attempt (Theft) and Receiving Stolen Property in a jury trial in Allegheny County. Post-trial motions were denied and the instant appeal is from the Judgment of Sentence.

In this appeal Appellant asks this Court to find error in the lower court’s failure to dismiss the indictment, or, in the alternative, to grant a new trial on the basis of an alleged violation of Appellant’s right to counsel during the preliminary hearing. We have carefully examined the record and, since we find no prejudicial error reflected therein, we affirm.

On October 22, 1979, a car was stolen from the Grant Building Parking Garage in Pittsburgh. One of the parking lot attendants, Mr. Dunlap, observed the thief as he drove the car out of the garage.

On October 31, 1979, a man entered the same garage and attempted to steal another car. This time, he was prevented by garage personnel, including Mr. Dunlap, from exiting the garage with the car. The man then fled on foot and was pursued by two other garage attendants, Messrs. Hollie and Phillips, who subsequently lost him during the chase. Appellant was arrested shortly thereafter, in connection with both incidents, after identification of him by Dunlap and Phillips. This identification took place within an hour of ihe events of October 31, 1979.

The preliminary hearing was held on November 16, 1979, at which time Appellant was again identified by Messrs. Dunlap and Phillips. At this hearing, Appellant was not represented by counsel. Instantly, he contends that he did not make a knowing and intelligent waiver of his right to be represented. Despite the fact that evidence of the identifications at the preliminary hearing was not introduced at trial, Appellant asserts that he suffered prejudice in that, had he been represented, any flaws or weaknesses in identification could have been discovered by cross-examination at the preliminary hearing. We need not, and do not, decide whether Appellant knowingly and intelligently waived his right to counsel at the preliminary hearing since our examination of the record indicates that the asserted error did not prejudice Appellant.

It is axiomatic that the preliminary hearing is a “critical stage” of a criminal proceeding, at which Appellant is entitled to the assistance of effective counsel. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); Commonwealth v. Rines, 247 Pa.Super. 429, 372 A.2d 901 (1977); Commonwealth v. Redshaw, 226 Pa.Super. 534, 323 A.2d 92 (1974). However, lack of representation at a preliminary hearing must result in specific prejudice to a defendant, Coleman, supra; Commonwealth v. Sawyer, 238 Pa.Super. 213, 357 A.2d 587 (1976), that is, it is subject to the harmless error test. See Redshaw, 226 Pa.Super. at 536, 323 A.2d at 93. “If Appellant suffers no prejudice, he is entitled to no remedy.” Rines, 247 Pa.Super. at 432, 372 A.2d at 903 (citation omitted).

The record reveals little effort on the part of the magistrate at the preliminary hearing to follow the procedures delineated in Rule 318, Pa.R.Crim.P., and we condemn such a disregard of these requirements. However, despite our extreme displeasure with, and condemnation of, such bfatant indifference toward procedural safeguards, to say nothing of its potential for tainting an otherwise proper prosecution, we note that the Rules of Criminal Procedure fail to provide for the granting of any specific relief merely on a showing of a Rule 318 violation. We conclude, therefore, that the Rule must be interpreted and applied in harmony with that line of cases, which require, as a condition for relief, actual prejudice to a defendant who has been denied representation at a preliminary hearing. See Rines, 247 Pa.Super. at 432, 372 A.2d at 903; Sawyer, 238 Pa.Super. at 217-220, 357 A.2d at 589-590; Redshaw, 226 Pa.Super, at 535-37, 323 A.2d at 93-94. See also Commonwealth v. Fowler, 275 Pa.Super. 544, 419 A.2d 34 (1980). We therefore hold that, when a Rule 318 violation occurs, relief is warranted if, but only if, a defendant suffers actual prejudice as a result thereof.

In the factual context of this case, the critical question is whether the subsequent in-court identifications had an origin independent of the identifications offered at the preliminary hearing of the then unrepresented defendant. Sawyer, 238 Pa.Super. at 217-220, 357 A.2d at 589-90. Factors to be taken into consideration in making the determination that the in-court identification had an independent, untainted origin, include:

“the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.”

Commonwealth v. Slaughter, 482 Pa. 538, 546, 394 A.2d 453, 457 (1978), quoting Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401. More specifically, the court should scrutinize:

“(1) the manner in which the pre-trial identification was conducted; (2) the witness’s prior opportunity to observe the alleged criminal act; (3)the existence of any discrepancies between the defendant’s actual description and any description given by the witness . . .; (4) any previous identification by the witness of some other person; (5) any previous identification of the defendant himself; (6) failure to identify the defendant on a prior occasion; and (7) the lapse of time between the alleged act and the out-of-court identification.”

Id. 482 Pa. at 546, 394 A.2d at 457, quoting, United States v. Higgins, 458 F.2d 461 (3d Cir. 1972). Accord, Sawyer, 238 Pa.Super. at 220, 357 A.2d at 590; Redshaw, 226 Pa.Super. at 537, 323 A.2d at 94.

Focusing on the facts of this case as elicited at trial, Mr. Dunlap testified that on October 22, 1979, he saw Appellant drive out of the parking garage in a stolen car. At that time he observed Appellant full-face, in daylight, for five or six seconds, from a distance of three or four feet. He further testified that he recognized Appellant, at a distance of ten to fifteen feet on October 31, 1979, as the same individual involved in the prior theft.

Mr. Phillips testified at trial that, at the time of the October 31 incident, the garage was well lit. He had an opportunity to observe Appellant from a position directly beside the driver’s window of the car which was the object of this attempted theft. Mr. Phillips further testified that he chased Appellant out of the garage, into the lobby of the Grant Building, and thus had the opportunity to observe Appellant a second time.

The identifications at trial were certain and unshakeable. No reference was made to the uncounselled identification. Both witnesses identified Appellant within an hour of the attempted theft of October 31, 1979. These factors considered together with the length of time of their observations, the lighting conditions and the close range of observation, provide an independent, untainted basis for the in-court identification. Thus Appellant suffered no prejudice as a result of the uncounselled identification and is not entitled to relief.

The judgment of sentence is affirmed.

      . 18 Pa.Cons.Stat.Ann. § 901(a) (Purdon 1973).

      . 18 Pa.Cons.Stat.Ann. § 3925 (Purdon 1973).

      . Appellant does not state that, in fact, there were any such flaws or weaknesses, nor does our reading of the record disclose any.

      . Rule 318 provides in pertinent part:
      (b) PROCEEDINGS BEFORE AN ISSUING AUTHORITY. When the defendant seeks to waive the right to counsel in a summary case or for a preliminary hearing in a court case, the issuing authority shall ascertain from the defendant whether this is a knowing, voluntary and intelligent waiver of counsel. In addition, the waiver shall be in writing, signed by the defendant and the issuing authority, be made a part of the record and be in the following form ....
      In addition, the Comment to the Rule recommends that certain questions, designed to elicit information establishing a knowing and intelligent waiver of counsel, be posed to a defendant. See, Rule 318 and Comment, P.R.Crim.P.


author: MONTGOMERY, Judge:

text:
    436 A.2d 1212
    Walter REYER, Appellant, v. John J. GUINTA, t/d/b/a Manzella-Guinta Funeral Home.
    Superior Court of Pennsylvania.
    Argued Jan. 14, 1981,
    Filed Nov. 6, 1981.

      John F. Becker, Pittsburgh, for appellant.
    Louis H. Ceraso, New Kensington, for appellee.
    Before SPAETH, SHERTZ and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The instant appeal arises from an order of the lower court granting a Petition to Open a Default Judgment which had been entered against the Defendant-Appellee, in a trespass action.

The record shows that the Plaintiff-Appellant filed a Praecipe for Writ of Summons in Trespass to recover damages for injuries he allegedly sustained while attempting to cross the Appellee’s property on his motorcycle. The Writ was issued on July 11, 1975, subsequently reissued on May 14, 1976, and again reissued on February 11, 1977. The second reissued Writ was served on the Appellee on February 16,1977. A Complaint in Trespass was filed on April 27, 1977 and a copy of the Complaint, with a notice to defend, were sent to the Appellee by certified mail. On September 30, 1977, an affidavit of service, accompanied by a receipt for certified mail, was filed by the Appellant’s original attorney. On the same date, Appellant’s attorney entered Judgment against the Appellee for failure to file an Answer within the required period of twenty days of service of the Complaint. Notice of the entry of Judgment was also sent to the Appellee by the Prothonotary on September 30, 1977. The Appellee denied having received notice of the Default Judgment until November, 1979. In June, 1978 the Appellant’s original attorney was suspended from practicing law in this Commonwealth and on February 22, 1979, was disbarred from the practice of law. Thereafter, on November 5, 1979, the Appellant’s present counsel placed this case on the call list. On February 14, 1980, approximately two years and five months after the Default Judgment was originally entered and the Prothonotary’s notice sent, and approximately three months after the Appellee admitted he received notice of its entry, he filed a Petition to Strike Off, or in the alternative, to Open the Default Judgment. The lower court initially denied the Appellee’s Petition, but after Appellee filed exceptions, the lower court, sitting en banc, granted the Appellee’s Petition to Open the Default Judgment. The lower court subsequently filed an opinion in support of its actions.

On this appeal, the Appellant contends that the lower court abused its discretion by opening the Default Judgment entered against the Appellee. The Appellant argues that the lower court erred in opening the Judgment despite its specific findings that the Appellee’s Petition to Open was not promptly filed and that the Appellee did not present a reasonable excuse for his failure to appear or file a timely answer. The lower court’s findings regarding these elements, and its rationale for opening the Judgment, are explained in the following excerpt from its opinion:

“The other criteria for opening judgment set down by our Appellate Courts, namely, that the petition be promptly filed and the failure to answer the complaint must be excused, present more difficulty for the defendant. Even assuming that he did not receive notice of the entry of the judgment from the Prothonotary and his first knowledge of the judgment was in November 1979 when his counsel advised him of it, he nevertheless did not move to open the judgment until February 14, 1980. But in the context of the case, where plaintiff himself pursued his cause of action in a lackadaisical, willy-nilly manner it would seem that he himself set the pace for the progress of the litigation at a very slow one and should not now be heard to complain that defendant followed his lead. This is not to say that such tactics on the part of either party should be condoned, but rather that equitable considerations dictate that this Court not reward the plaintiff and penalize the defendant when both are equally responsible for the delay of seven years in bringing this case to trial.
“Insofar as defendant’s failure to answer the Complaint is concerned, we also hold that the combination of the similar lawsuit in Allegheny County and the dilatory tactics on the part of the plaintiff himself in this suit excused the defendant from filing an answer in the required time.”

It is apparent from these passages that the Appellant is at least correct in asserting that the lower court opened the Default Judgment despite finding that the Appellee did not promptly move to open the Judgment. From the passage of the lower court’s opinion quoted above, we cannot be certain that the lower court found, but excused the fact that the Appellee did not offer a reasonable excuse for his failure to appear or file a timely answer in the case. However, in view of its finding that the Petition to Open was not timely filed, we must conclude that the lower court erred in opening the Judgment.

It is well-established that the opening of a default judgment is a matter within the discretion of the trial court. See Forest Hills Transfer & Storage Company, Inc. v. Beaver Valley Builders Supply, Inc., 271 Pa.Super. 566, 414 A.2d 628 (1979). The trial court’s decision in such circumstances will not be disturbed in the absence of an error of law or a clear abuse of discretion. Brooks v. Surman Dental Lab, Inc., 262 Pa.Super. 369, 396 A.2d 799 (1979); Hersch v. Clapper, 232 Pa.Super. 550, 335 A.2d 738 (1975). However, the lower court’s discretion to open judgment can only be properly exercised when three factors coalesce: (1) the petition has been promptly filed; and (2) a meritorious defense can be shown; and (3) the failure to appear can be excused. See Hutchinson v. Hutchinson, 492 Pa. 118, 422 A.2d 501 (1980). The question of whether a meritorious defense has been shown need not be resolved in a trespass case, such as the instant one, except where the equities are not otherwise clear. See Forest Hills Transfer & Storage Company, Inc. v. Beaver Valley Builders Supply, Inc., supra; Brooks v. Surman Dental Lab, Inc., supra.

In the instant case, the lower court’s finding that Appellee failed to move promptly to open the Default Judgment, after receiving notice of it, was alone sufficient to mandate the denial of the Petition to Open. The delay in filing the Petition to Open was approximately three months. The lower court’s finding that such a hiatus indicated a lack of promptness by the Appellee does not appear to be an abuse of discretion. We have stated that there is no “magic” number of days which will determine whether a petition to open is timely filed. Raymond J. Brusco Funeral Home v. Sicilia, 277 Pa.Super. 115, 419 A.2d 688 (1980). Delays of approximately three months or less after notices of the default judgments have been held untimely in various factual circumstances. Cf. In re McCauley’s Estate, 478 Pa. 83, 385 A.2d 1324 (1978); Pappas v. Stefan, 451 Pa. 354, 304 A.2d 143 (1973); Texas and Block House Fish and Game Club v. Bonnell Run Hunting & Fishing Corp., 388 Pa. 198, 130 A.2d 508 (1957); Hatgimisios v. Dave’s N. E. Mint, Inc., 251 Pa.Super. 275, 380 A.2d 485 (1977); Quatrochi v. Gaiters, 251 Pa.Super. 115, 380 A.2d 404 (1977); Schutte v. Valley Bargain Center, Inc., 248 Pa.Super. 532, 375 A.2d 368 (1977); Carducci v. Albright Galleries, Inc., 244 Pa.Super. 48, 366 A.2d 577 (1976); Hofer v. Loyal Order of Moose of World, 243 Pa.Super. 342, 365 A.2d 1254 (1976); Dwyer v. Hunsberger, 229 Pa.Super. 198, 323 A.2d 822 (1974). The Appellee’s only explanation for the delay evident in the instant case was that after he heard from his attorney “early in November” that the default judgment had been entered, he had “business to conduct” and “for some reason or another, my attorney and I couldn’t get together until sometime in late January or early February”. This testimony cannot be held to furnish sufficient cause to equitably justify the three month delay in the filing of the Petition to Open. In these circumstances, the lower court had no justifiable basis for ignoring the requirement of promptness in filing, despite its finding that such promptness was absent, and the Petition to Open should not have been granted. Thus, on that basis alone, the lower court’s order must be reversed.

Having reached this conclusion, we need not decide the second issue raised by the Appellant, that the lower court erred in opening the Judgment despite finding that the Appellee did not offer a reasonable excuse for his failure to appear or file a timely answer in the case. The order of the lower court is reversed and the Default Judgment reinstated. We do not retain jurisdiction.

SPAETH, J., filed a dissenting opinion.

SPAETH, Judge, dissenting:

The result of the majority’s opinion is to require appellee to pay damages, which will probably be substantial, on a claim that because of appellant’s conduct is both stale and probably without merit.

I recognize the majority’s point that appellee was slow in filing his petition to open the judgment. However, as the majority acknowledges, at 1214-1215, the cases do not specify any fixed period within which a petition to open must be filed, if it is to be held timely. Here the lower court—three judges sitting en banc—decided that the petition was timely enough. I am unable to join the majority’s opinion, at 1214, 1215, that this decision represented a “clear abuse of discretion.”

An “abuse of discretion”
is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapprehended, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence on the record, discretion is abused. Mielcuszny v. Rosol, 317 Pa. 91, 93-94, 176 A. 236, 237 (1934).

As shown by its opinion, the lower court took into account the following: Appellant went into a “long sleep upon his rights.” Slip. op. of lower court at 6. No complaint was filed until almost four years after the cause of action arose, and no action was taken on the default judgment entered in September 1977 until November 1979. Appellee believed he had no liability to appellant. He knew he had paid “only a ‘nuisance value’ amount” toward the settlement of the action brought against appellant by appellant’s passenger, and that most of the settlement had been paid by appellant’s carrier. Id. at 6. Appellee’s belief that he was not liable to appellant was, moreover, supported by the facts of the accident, as appellee would undertake to prove them at trial, i. e., that appellant was a trespasser, and in the darkness of early morning ran into a chain with reflectors on it. Id. at 4.

The essence of equity is that both sides should be treated fairly. In my opinion, the lower court’s decision that appellee should be permitted to defend represented as fair a balance as it could strike. In any event, it did not represent an abuse of discretion.

I should affirm the order granting the petition to open the default judgment.

      . The actual date of service of the Complaint is not clear. Counsel’s affidavit of service was executed on September 28, 1977, so that service was apparently made prior to that date. No issue has been raised by the Appellee concerning the date or manner of service of the Complaint.

      . The lower court determined that the Appellee had shown a possible meritorious defense, but the Appellant has raised no issue on this appeal regarding that conclusion, so that we shall not address it in this Opinion.


author: VAN der VOORT, Judge:

text:
    436 A.2d 1216
    CONTINENTAL BANK & TRUST COMPANY, v. A. B. KYLE, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 13, 1980.
    Filed Nov. 6, 1981.
    Petition for Allowance of Appeal Denied Jan. 29, 1982.

      A. B. Kyle, appellant, in pro. per.
    Eric Tobin, Doylestown, for appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

This is an appeal from an order denying appellant’s preliminary objections challenging the lower court’s jurisdiction. Appellant has taken this appeal pursuant to the Act of March 5, 1925, P.L. 23, s. 1, 12 P.S. 672; 42 Pa.C.S.A. 702(a), 742; and Pa.R.A.P. 311(a)(7).

Appellant’s brief suggests three areas where the lower court’s jurisdiction was lacking. We need only review two of the three. Appellant’s third claim alleges that jurisdiction was lacking because “the complaint shows no obligation to be due.” Such a claim contained in a preliminary objection is in the nature of a demurrer and not appealable upon the denial of the preliminary objections. Urbano v. Meneses, 288 Pa.Super. 103, 431 A.2d 308 (1981).

Appellant’s remaining arguments are:

I. The Court of Common Pleas was without power to issue process as the complaint was not under its judicial seal; and
II. A deputy sheriff has no power to serve process not issued by a court.

I. Appellant contends that the complaint in the current case was issued by an agent of appellee and not by the Prothonotary of the lower court. Appellant would have us hold that unless the Prothonotary affixes the seal of the court to the complaint, the court is without power to issue process.

Under Pa.R.C.P., Rule 1007, an action in assumpsit may be commenced by filing with the prothonotary a complaint. Under the Rules of Civil Procedure, the plaintiff’s initial pleading, a copy of which is served upon the defendant, serves in the “dual capacity of process and pleading.” Goodrich-Amram 2d § 1007:6. Rule 1008 further requires that the copy of the complaint, to be served upon the defendant, be attested by the prothonotary or sheriff or certified by the plaintiff to be a true copy. Accordingly, a court need not affix its seal to the copy of the complaint served upon the defendant if the plaintiff’s attorney has certified the copy.

II. As we find process was properly issued, we need only focus on the question of whether a deputy sheriff may serve the copy of the complaint upon the appellant. We must first note that appellant does not challenge the actual service, but only the deputy sheriff’s power to serve.

Rule 1009, Pa.R.C.P. requires service by the sheriff within thirty (30) days of the filing of the complaint. “Whenever the sheriff is or shall be required by law to act in person under or by virtue of any writ or process whatsoever issued by the courts of this Commonwealth, he may act either in person or by a regularly appointed deputy sheriff.” 16 P.S. § 1202. (Emphasis added). Appellant would have us interpret the emphasized portion of the statute to hold that a deputy sheriff may only serve a writ or complaint to which the Court of Common Pleas has affixed its seal.

We believe that appellant’s view is unnecessarily restrictive. A party cannot on its own issue process. But as previously discussed, a party may cause process to issue by filing a complaint and having a copy thereof served by the sheriff. Such a complaint does result in the issuance of process by a court of this Commonwealth, even though the court’s seal does not appear on the document.

Order affirmed, case remanded for proceedings consistent with this opinion.

      . “While the order appealed from is interlocutory, it is appealable because it raises a question concerning jurisdiction of the cause of action under the Act of March 5, 1925, P.L. 23, § 1, 12 P.S. § 672, before repeal of that statute on June 27, 1980. Turner v. May Corporation, supra, note 1, 285 Pa.Super. at 241 & n. 3, 427 A.2d [203] at 205 & n. 3. By reason of its holding that the part of the Act of 1925 dealing with jurisdiction of the cause of action was applicable on January 28, 1980, Turner necessarily rejected the argument, which has been raised a number of times in this court in the past two years in motions to quash, that the entire Act of 1925 was supplanted by new Rule of Appellate Procedure 311, effective April 22, 1979. 8 Pa.Bull. 3636, 3637 (1978). Instead, Turner concluded that subparagraph (a)(7) operated to leave the Act intact with respect to questions concerning jurisdiction of the cause of action, at least until the Act’s June 27, 1980 repeal date.” Gallardy v. Ashcraft, 287 Pa.Super. 326, 430 A.2d 1201, 1202 at fn. 3 (1981). Thus we apply the Act of 1925 to this appeal filed on January 8,
      1980.


text:
    436 A.2d 1217
    COMMONWEALTH of Pennsylvania, v. Robert HARPER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed Nov. 13, 1981.

      Brian S. Quinn, Havertown, for appellant.
    Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the Court of Common Pleas, Delaware County, denying relief on a counseled Post Conviction Hearing Act (PCHA) petition filed by appellant, Robert Harper.

On April 14, 1978, after trial before a jury, appellant was convicted of several counts of forgery, attempted forgery, and receiving stolen property. At trial, appellant was represented by a member of the public defender’s office (first counsel). No post-verdict motions were filed, and, following a hearing on appellant’s petition to file post-verdict motions nunc pro tunc, the petition was denied. New, private counsel (second counsel), aided appellant both in the preparation of the petition and at the hearing. At sentencing, appellant, again represented by another private attorney (third counsel/post-trial counsel), was sentenced to serve a term of imprisonment of six to twelve years. No direct appeal was taken.

On February 8, 1979, appellant filed a pro se PCHA petition. An amended petition was filed by new, private counsel (fourth counsel) on May 24, 1979. A hearing was held and the petition was denied on August 6, 1979. This appeal followed. On appeal, appellant is represented by fifth counsel, who is a private attorney.

Instantly, appellant argues that: (1) trial counsel was ineffective for failing to object to the admission of evidence that had been ordered suppressed; and for abandoning him at the post-verdict motions stage; (2) the lower court erred in denying appellant’s petition to file post-verdict motions nunc pro tunc thereby denying his right to appeal; and (3) appellant was denied the right to be provided with free transcripts.

For the following reasons, we affirm the order of the lower court.

It is well settled that a criminal defendant who deliberately and knowingly chooses to bypass orderly state procedures afforded for challenging his conviction is bound by the consequences of that decision. Commonwealth v. Myers, 427 Pa. 104, 233 A.2d 220 (1967); Commonwealth v. Mika, 277 Pa.Super. 339, 419 A.2d 1172 (1980). In Pennsylvania, our Post Conviction Hearing Act precludes one from obtaining collateral relief where the issues raised either have been waived or finally litigated. Commonwealth v. Jumper, 494 Pa. 451, 431 A.2d 941 (1981). An issue is waived when:

(1) the petitioner knowingly and understanding^ failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this act; and
(2) the petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue. 19 Pa.C.S.A. § 1180 4(b) (Supp. Pamphlet 1965-1980).
Moreover,
There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure. Id. § 1180-4(c) (emphasis added).

Instantly, appellant failed to take a direct appeal from the judgment of sentence. Hence, his failure to appeal constitutes a waiver since the issues appellant raises before us were cognizable at that stage. See Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Lochman, 265 Pa.Super. 429, 402 A.2d 513 (1979).

In certain situations, the ineffectiveness of counsel has been held to be an “extraordinary circumstance” excusing one’s failure to raise the claim at the first opportunity. Commonwealth v. Klaric, 263 Pa.Super. 286, 397 A.2d 1212 (1979). Here, however, this court is not confronted with such an issue because trial counsel’s ineffectiveness could have been raised by a different attorney, post-trial counsel, on direct appeal. See Commonwealth v. Lochman, 265 Pa. Super. 429, 434, 402 A.2d 513, 516 (1979). Moreover, we have said that:

[w]here an appellant is represented by different post-trial counsel, and said appellant either fails to take a direct appeal or fails to raise his claims of trial counsel’s ineffectiveness on direct appeal, such a failure will constitute a waiver of these issues as to post-conviction proceedings, excepting only those claims which fit under one or more of the four categories listed in Dancer **§Commonwealth v. Glasco, 241 Pa.Super. 484, 497, 362 A.2d 420, 427 (1976).

Appellant does attempt to set forth in his brief and extraordinary circumstance excusing his failure to file an appeal. He frames the issue as follows:

“[i]t cannot be assumed that the failure of counsel to preserve issues for appeal or to file post verdict motions in this case constituted a ‘knowing and intelligent’ waiver of Appellant’s right to appeal.” (Supplemental Brief for Appellant In Forma Pauperis at 8).

Again, however, appellant’s claim is waived because “the earliest stage in the proceedings at which the counsel whose ineffectiveness is being challenged no longer represented] the [appellant]” was at the post-trial stage. As a result,

“[i]t follows then that when newly appointed post-trial counsel fails to assign the ineffectiveness of trial counsel as a ground for post-trial relief, the issue of trial counsel’s ineffectiveness is not properly preserved for appellate review.” Commonwealth v. Hubbard, 472 Pa. 259, 276 n. 6, 372 A.2d 687, 695 n. 6 (1977).

Thus, in the case before us, there does not exist any other “extraordinary circumstances” which could have justified his failure to raise the issue of trial counsel’s competency. See Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Klaric, supra. Accordingly, appellant is not entitled to relief.

While the claims in question have been waived, we nevertheless have examined, in the interests of judicial economy, appellant’s contentions and find them utterly devoid of merit.

First, appellant inartfully argues that trial counsel was ineffective for failing to object to the witness’s reference when he described the perpetrator of the crimes as a male. According to appellant, this reference “had the effect of identification ... of [appellant] as the person who committed the alleged crimes” and therefore was an impermissible reference to the identification testimony which had been ordered suppressed. (Supplemental Brief for Appellant In Forma Pauperis at 7). This contention is totally unfounded.

The trial transcript directly contradicts appellant’s allegation. Trial counsel did object to the prosecution witness’s reference to the perpetrator of the crimes as male. When the objection was overruled, trial counsel requested and obtained a side-bar where he again objected to any characterization that the alleged forgerer was “male, female, or in any other way.” (N.T. 4/12/78, pp. 50-51).

Second, appellant contends that trial counsel was ineffective for failing to file post-verdict motions because counsel had not “notified his client, [obtained] leave from the Court, or complied] with the ‘constitutionally mandated procedure for withdrawal.’ ” (Supplemental Brief for Appellant In Forma Pauperis at 7-8, citing Commonwealth v. Greer, 455 Pa. 106, 314 A.2d 513 (1974)). This contention is ludicrous. The trial court determined and the record reveals that appellant “was afforded counsel for the purpose of assisting him in the filing of post-trial motions and he chose to refuse to cooperate with counsel.” (Memorandum Opinion and Order on Petition to File Post-Verdict Motions Nunc Pro Tunc at 3, Record No. 18) (emphasis added). We now will not permit appellant to attack the stewardship of counsel when appellant “refuse[d] to cooperate” with counsel and so stated on the record that he did not intend to use counsel on appeal. (N.T. 4/14/78, p. 195).

Third, appellant argues that the lower court erred in dismissing his petition to file post-verdict motions nunc pro tunc. He contends that because he “[did] not ‘knowingly and intelligently’ waive his post-verdict and appellate rights, [the motions] must be heard nunc pro tunc if necessary.” Supplemental Brief for Appellant In Forma Pauperis at 9). We disagree. While it is well-settled that an accused has an absolute right to appeal, Pa.Const.Art. V, § 9, and that issues not included in post-verdict motions are waived, Pa.R.Crim.P. 1123(b), it is equally settled that a defendant may waive his right to file post-verdict motions, Commonwealth v. Olsen, 247 Pa.Super. 513, 372 A.2d 1207 (1977). The record clearly indicates that appellant was fully apprised of his right to file post-verdict motions, his right to counsel, and of the need to strictly comply with the requirements of Pa.R.Crim.P. 1123. Nevertheless, appellant chose to take matters under his own advisement by filing a pro se PCHA petition, which was dismissed as being premature. Appellant now would have us find that he was entitled, as a matter of right, to file post-verdict motions nunc pro tunc. This we will not do. The record establishes that the trial court complied with Rule 1123. Therefore, a “deliberate waiver of the right to file post-verdict motions is deemed to have been made.” Commonwealth v. Ramsey, 259 Pa.Super. 240, 252, 393 A.2d 806, 813 (1978). Moreover, the transcript of the hearing on appellant’s petition to file post-verdict motions nunc pro tunc amply supports the hearing court’s conclusion “[that] the arguments raised by [appellant] as a basis for motions for a new trial . . . are patently without merit.” (Memorandum Opinion and Order on Petition to File Post Verdict Motions Nunc Pro Tunc at 3, Record No. 18). The lower court, therefore, did not err in denying appellant’s petition.

Finally, appellant contends that he was denied his right to be provided with free transcripts, thereby precluding him from effectively challenging the judgment of sentence. Although we agree that an indigent defendant does have a right to be provided with free transcripts, Commonwealth v. Homsher, 264 Pa.Super. 271, 399 A.2d 772 (1979), appellant’s failure to obtain a transcript does not entitle him to relief in the instant appeal. First, appellant knowingly and voluntarily waived his rights to direct appeal. Second, we note that appellant did not request the documents nor present this issue before the post conviction hearing court. Appellant, therefore, may be deemed to have waived his right to be provided with free transcripts and his right to raise this issue in the instant appeal. See e. g. Commonwealth v. Mitchell, 474 Pa. 274, 383 A.2d 930 (1978).

The order of the PCHA court dismissing appellant’s petition is affirmed.

JOHNSON, J., concurs in the result of this opinion.

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

      . On the tenth day following the verdict, appellant filed a pro se PCHA petition alleging, inter alia, that he was denied effective assistance of counsel. The trial court dismissed the petition as being premature, appointed new, private counsel to represent appellant, and granted appellant ten days to petition for leave to file post-verdict motions nunc pro tunc.

      . The petition, with amendments, raised the following claims: (1) ineffective assistance of pre-trial and trial counsel for failing to procure the services of an expert witness; (2) ineffective assistance of trial counsel for failing to object to indirect in-court identification of appellant by Commonwealth witnesses, in disregard of a suppression order with respect to all identification of appellant; (3) the right to court appointed counsel independent of the public defender’s office because of hostility between appellant and members of that office; (4) ineffective assistance of counsel in failing to adequately consult with and prepare appellant for trial; (5) the unconstitutional use of suppressed evidence at trial; (6) recording of an incorrect sentence by the Department of Justice, Bureau of Correction; (7) denial of the right to counsel at the preliminary hearing; (8) denial of the right to raise the issue of ineffective assistance of counsel at the appellate level because of sentencing counsel’s failure to appeal the judgment of sentence.
      We will not now consider any of the above contentions that appellant has failed to address in his brief before this court. Pa.R. App.P. 2116.

      . While the question of waiver has not been raised by either party, this court may raise it sua sponte. Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977); Commonwealth v. Klaric, 263 Pa.Super. 286, 397 A.2d 1212 (1979).

      . In one of several pro se briefs filed in the instant appeal, appellant also contends, for the first time, that the informations were invalid because they contained a rubber stamp facsimile of the signature of the District Attorney. While we note that the use of a rubber stamp facsimile has been held not to meet the requirement that an information be “signed by the attorney for the Commonwealth,” see Commonwealth v. Emanuel, 285 Pa.Super. 594, 428 A.2d 204 (1981); under the state of the present law, appellant’s failure to file a pretrial motion to quash the information constitutes a waiver of his right to assert this impropriety in any subsequent proceeding. Pa.R.Crim.P. 306(e). See Commonwealth v. Williams, 252 Pa.Super. 587, 384 A.2d 935 (1978). In any event, appellant did not raise this issue in his Post Conviction Hearing Act petition, or in his amended petition thereto, and therefore, it is not preserved for review. See Commonwealth v. Carrier, 494 Pa. 305, 431 A.2d 271 (1981). See generally Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975).

       “Our Post Conviction Hearing Act and the principles of judgment finality mandate that claims of ineffectiveness of counsel may only be raised in PCHA proceedings 1) where petitioner is represented on appeal by his trial counsel, for it is unrealistic to expect trial counsel on direct appeal to argue his own ineffectiveness, 2) where the petitioner is represented on appeal by new counsel, but the grounds upon which the claim of ineffective assistance are based do not appear in the trial record, 3) where the petitioner is able to prove the existence of other ‘extraordinary circumstances’ justifying his failure to raise the issue, Post Conviction Hearing Act § 4(b)(2), 19 P.S. § 118-4(b)(2) (Supp.1974) or 4) where the petitioner rebuts the presumption of ‘knowing and understanding failure.’ Post Conviction Hearing Act § 4(c), 19 P.S. § 1180-4(c) (Supp.1974).” Commonwealth v. Dancer, 460 Pa. 95, 100, 331 A.2d 435, 438 (1975).

      . We note that the trial court could have treated this pro se PCHA petition as being timely filed post-verdict motions. See Commonwealth v. Gravely, 486 Pa. 194, 196, 404 A.2d 1296, 1297 (1979). In any event, our examination of the claims raised therein reveals that they are devoid of merit.


author: WIEAND, Judge:

text:
    436 A.2d 1222
    Matthew BARTON, Appellant, v. Staff Inspector Ralph PENCO, Police Commissioner Morton Solomon and City of Philadelphia.
    Superior Court of Pennsylvania.
    Submitted Feb. 23, 1981.
    Filed Nov. 13, 1981.

      Robert A. Gelinas, Philadelphia, for appellant.
    Tyler E. Wren, Assistant City Solicitor, Philadelphia, for appellees.
    Before SPAETH, JOHNSON and WIEAND, JJ.
   WIEAND, Judge:

Matthew Barton, a police officer, was accused of receiving stolen property by an unidentified complainant. After a thorough investigation had been conducted by Inspector Ralph Penco, the accusation was found to be groundless. Barton thereafter commenced an action in equity to compel Penco, Police Commissioner Morton Solomon, and the City of Philadelphia to disclose the name and address of the complainant and the contents of the investigative file. The trial court, after hearing, entered an order denying a mandatory injunction and dismissing the complaint with prejudice.

Barton, without filing exceptions, took an immediate appeal to this Court. Therefore, we must first determine whether appellant’s failure to file exceptions precludes him from presenting substantive arguments on appeal. See: Pa.R.C.P. 1518; Logan v. Cherrie, 444 Pa. 555, 282 A.2d 236 (1971).

The trial court’s order from which the instant appeal was filed did not comply with the Rule 1517 requirements of an adjudication. It contained “no findings of fact, no conclusions of law, nor any language which would indicate that the order [was] a decree nisi, or that the parties were required to file exceptions to perfect a right of appeal. There is nothing on the face of the order which would indicate that it is anything other than a final order and, as such, the requirements of Rule 1518 are not applicable. When the court’s order neither comports with the requirements of Rule 1517 nor indicates on its face that the order is a decree nisi, it should not be presumed that exceptions must be filed in order to preserve a right of appeal.” Commonwealth v. Derry Township, et al., 466 Pa. 31, 41-42, 351 A.2d 606, 611 (1976). See also: Greenwood Township v. Kefo, Inc., 52 Pa.Cmwlth. 367, 416 A.2d 583 (1980). The instant appeal, therefore, is not improper for this reason.

Appellant’s complaint was based exclusively on the Right-to-Know Act of June 21, 1957, P.L. 390, as amended, 65 P.S. §§ 66.1-66.4. He contends, as he did in the court below, that the file encompassing the investigation is a “public record” and, therefore, subject to examination and inspection. It is a public record, he argues, because it is a “.. . minute, order, or decision by an agency fixing the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons . . . . ” See: 65 P.S. § 66.1(2).

Appellant has not been prosecuted or disciplined in any way. His employment has not been terminated, and he has not been denied access to his personnel file. As justification for examining the departmental investigation he suggests the possibility that a civil action for defamation may be instituted against the police informant whose accusations caused the investigation to be made.

In West Shore School District v. Homick, et al., 23 Pa. Cmwlth. 615, 619, 353 A.2d 93, 95 (1976), the Commonwealth Court observed: “A decision ‘fixing’ rights or duties of a person is not the same thing as a gathering of information, notations, and evaluations that may or may not be utilized at some future time to reach a decision that would fix rights or duties.” The same court subsequently placed a broad construction upon the term “fixing” in Lamolinar v. Barger, et al., 30 Pa.Cmwlth. 307, 373 A.2d 788 (1977). It there said “. . . we do not read the term ‘fixing’ to require the affirmative establishment or creation of rights, privileges, immunities, duties or obligations. . . . [W]e believe it in keeping with the spirit and intent of the Right-to-Know Law to construe ‘public record’ to include decisions which establish, alter, abolish or deny rights, privileges, immunities, duties or obligations; in short, decisions which affect them.” Id., 30 Pa.Cmwlth. at 311, 373 A.2d at 790.

In the instant case, appellant’s rights, privileges, immunities, duties and obligations have not been altered, abolished, or denied in any way. Cf. Mitman v. County Commissioners of Chester County, 55 Pa.Cmwlth. 358, 423 A.2d 1333 (1980). On the contrary, the departmental investigation failed to sustain the averments of misconduct made about him by the complainant. If we assume that the investigation resulted in an affirmative “decision” not to prosecute or discipline appellant, the informant, his accusations, and the file of the investigation were nonetheless immune from examination under the Right-to-Know Law.

The statute specifically excludes from those records which are to be open for examination and inspection “any report, communication or other paper, the publication of which would disclose the institution, progress or result of an investigation undertaken by an agency in the performance of its official duties. . . . ” 65 P.S. § 66.1(2). The complainant, whose identity appellant sought to discover, gave information which caused Inspector Penco to institute and conclude a departmental investigation. This was done as a part of his official duties as a law enforcement officer and member of the Internal Affairs Unit of the Philadelphia Police Department. His findings, as we have already observed, resulted in the conclusion that the accusations against appellant were unfounded and that no action was warranted against appellant. Under such circumstances, the statute does not compel disclosure.

Moreover, we fail to perceive any great benefit to the public in requiring disclosure of a police investigation which demonstrates a lack of substance to an informant’s complaint. Complaints are received frequently by police departments throughout this state. They are a valuable aid to law enforcement. Receiving reports from private citizens, therefore, is a legitimate law enforcement function. A privilege to withhold such information has been declared by the courts in order to further and protect the public interest in effective law enforcement. See: Commonwealth v. Garvin, 448 Pa. 258, 266, 293 A.2d 33, 38 (1972). It was this legitimate objective which, in part, prompted the legislature to exclude from the effect of the Right-to-Know Law any report or communication which would disclose the institution or result of an official investigation. See and compare: Wiley v. Woods, 393 Pa. 341, 141 A.2d 844 (1958); Starobin v. Department of Revenue, 53 Pa.Cmwlth. 543, 418 A.2d 800 (1980), allocatur denied, 494 Pa. 103, 429 A.2d 1112 (1981); Mellin et a1. v. City of Allentown, et al, 60 Pa.Cmwlth. 114, 430 A.2d 1048 (1981).

For these reasons we conclude that the identity of the complainant sought to be discovered and the investigation sought to be examined are not “public records” under the Right-to-Know Law. Therefore, the trial court correctly denied relief and dismissed the complaint.

Order affirmed.

      . Pa.R.C.P. 1517(a) provides: The adjudication shall consist of (1) a statement of the issues; (2) a closely condensed chronological statement, in narrative form or in separate findings of all the facts which are necessary to be known in order to determine the issues; (3) a discussion of the questions of law involved and the court’s conclusions of law and (4) a decree nisi.

      . The statute provides for the right of appeal from a denial of a request to examine and inspect public records. This statutory remedy is exclusive. Wiley v. Woods, 393 Pa. 341, 350, n. 9, 141 A.2d 844, 849, n. 9 (1958). An action in equity for a mandatory injunction, therefore, was improper. See: Peitzman v. Seidman, 285 Pa.Super. 228, 427 A.2d 196, 198 (1981). However, this issue was raised for the first time on appeal and was not considered by the trial court. Accordingly, we have considered the appeal on its merits. See: Appellate Rule 302(a).