author:
      JOHNSON, Judge: KELLY, Judge,
      SAYLOR, Judge,

text:
    669 A.2d 984
    COMMONWEALTH of Pennsylvania, Appellant, v. Michael Reuben BROWN.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1995.
    Filed Dec. 29, 1995.

      Mary B. Seiverling, Deputy Attorney General, Harrisburg, for the Commonwealth, appellant.
    Barry L. Smith, Warren, for Jay W. Buckley, participating party.
    Before ROWLEY, President Judge, and CAVANAUGH, BECK, TAMILIA, KELLY, JOHNSON, HUDOCK, FORD ELLIOTT and SAYLOR, JJ.
   JOHNSON, Judge:

The Commonwealth brings this appeal claiming that the trial court, in ordering the prosecution of a private criminal complaint, usurped its policy-making authority contrary to the separation of powers doctrine. We are also asked to clarify the standard by which the trial court evaluates a prosecutor’s decision regarding a private complaint. Further, we must establish the standard for appellate review of such a complaint. Because we find that the trial court did not err or abuse its discretion in directing the Attorney General to prosecute this case, we affirm.

In September 1989, while investigating the kidnapping, rape and murder of Kathy Wilson, the police in Warren County, Pennsylvania, offered a reward for information leading to the discovery and conviction of her killer. In response, New York resident Michael Reuben Brown, then age 16, contacted authorities and claimed to have information about the case. Police arranged to have Brown transported to Pennsylvania. Upon his arrival, Brown was immediately arrested and charged with Wilson’s murder, rape and kidnapping.' Following his arrest, Brown gave statements to police that implicated Jay William Buckley as Wilson’s murderer. Thereafter, police arrested Buckley and charged him with Wilson’s murder, kidnapping, and rape. In return for his testimony against Buckley, prosecutors agreed to permit Brown to plead guilty to the lesser charges of indecent assault, felonious restraint, and hindering apprehension.

At Buckley’s trial, Brown testified that he had been with Buckley and had witnessed him kidnap, rape, and ultimately kill Wilson. However, during ten. days of cross-examination, defense counsel questioned Brown about numerous inconsistencies between his in-court testimony and the statements he had given to police. Counsel pointed out discrepancies in, among other things, Brown’s descriptions of Wilson’s clothing, how she was abducted, and the type of weapon used. As a result, Brown admitted that he had repeatedly lied in his statements to police and during previous court appearances. Brown also conceded that he had committed numerous acts of perjury at Buckley’s preliminary hearing. In all, Brown admitted to having told over 700 lies in connection with the disappearance and murder of Wilson. Subsequently, the jury acquitted Buckley on all charges.

Following Brown’s guilty plea to the lesser charges, the trial court sentenced him to an aggregate term of 7 to 14 years’ imprisonment. Brown then filed post-trial motions for reconsideration of his sentence and withdrawal of his guilty plea. Thereafter, at a hearing on these motions, Brown again testified that he had lied at Buckley’s trial when he claimed to have been an eyewitness to Wilson’s abduction, rape and murder. According to Brown, his trial testimony had been scripted by Pennsylvania State Trooper John Herzog and District Attorney Joseph Massa, and he had testified the way that he did at their request. The trial court granted Brown’s petition to withdraw his guilty plea and authorized the Commonwealth to reinstate the original charges against him. The Commonwealth, however, elected not to prosecute and petitioned the court to nolle pros all charges. The trial court granted this petition. Further, the District Attorney decided not to file charges against Brown for making false statements to police or committing perjury during Buckley’s preliminary hearing and trial.

On November 21, 1991, Buckley submitted a private criminal complaint to the Warren County District Attorney’s Office pursuant to Pa.R.Crim.P. 133, Approval of Private Criminal Complaints, which has since been re-numbered as Pa. R.Crim.P. 106. In his complaint, Buckley alleged that Brown committed three acts of perjury and one act each of making false reports to law enforcement authorities, tampering with or fabricating physical evidence, hindering apprehension or prosecution, obstructing the administration of law or other governmental function, making unsworn falsifications to authorities, and criminal conspiracy. The private criminal complaint was based upon Brown’s actions leading up to Buckley’s arrest and during Buckley’s trial.

In his complaint, Buckley named the District Attorney as Brown’s co-conspirator. As a result, the District Attorney, pursuant to the Commonwealth Attorney’s Act, 71 P.S. § 732-205(a)(3), asserted a conflict of interest and requested that the Attorney General review the complaint. In July 1993, twenty months after its submission to the District Attorney’s Office, the Attorney General disapproved Buckley’s private criminal complaint. Pursuant to Rule 106, Buckley filed a petition with the court of common pleas, seeking its. approval of the private criminal complaint. Following a hearing in December 1993, the trial court concluded that the Attorney General had committed a gross abuse of discretion in disapproving the first eight counts of Buckley’s private criminal complaint and directed the Attorney General to prosecute Brown on those charges. However, the court disapproved the conspiracy charge, determining that the Attorney General had acted within his discretion when deciding not to prosecute on that charge. This appeal followed.

On appeal, the Attorney General argues that the trial court’s directive to prosecute the criminal complaint, despite the Attorney General’s policy-based discretionary decision to the contrary, violates the separation of powers doctrine. The Attorney General further asserts that the trial court erred in determining that he committed a gross abuse of discretion in disapproving the private criminal complaint.

In order to consider the merit of these contentions, we must analyze the authority that establishes the proper procedure for addressing private criminal complaints. This procedure is set forth in Pa.R.Crim.P. 106 as follows:

Rule 106. Approval of Private Complaints
(a) When the affiant is not a law enforcement officer and the offense(s) charged include(s) a misdemeanor or felony which does not involve a clear and present danger to any person or to the community, the complaint shall be submitted to an attorney for the Commonwealth, who shall approve or disapprove it without unreasonable delay.
(b) If the attorney for the Commonwealth:
(2) disapproves the complaint, the attorney shall state the reasons on the complaint form and return it to the affiant. Thereafter the affiant may file the complaint -with a judge of a court of common pleas for approval or disapproval....

As his first issue, the Attorney General contends that the trial court’s directive to prosecute Buckley’s private criminal complaint, despite the Attorney General’s policy-based discretionary decision to the contrary, violates the separation of powers doctrine. Specifically, he asserts that courts may never evaluate prosecutorial decisions that are based on policy determinations. We disagree.

First, after reviewing the record, we find that this issue is raised for the first time in the Attorney General’s brief to this Court. It is well-settled that if an issue is not properly preserved at trial, it is waived for the purposes of appellate review. Pa.R.A.P. 302(a); Commonwealth v. Shoup, 423 Pa.Super. 12, 620 A.2d 15 (1993). Thus, we find that this issue has been waived.

Moreover, even if this issue had been properly preserved, we conclude that the Attorney General’s contention is without merit. Rule 106, in authorizing the issuance of private criminal complaints, expressly provides for the approval or disapproval of such a complaint by a judge of the court of common pleas. See also Commonwealth v. Stivala, 435 Pa.Super. 176, 187, 645 A.2d 257, 262 (1994) (“The clear language of [Rule 106] indicates that although the prosecuting attorney has discretion over whether to prosecute based upon the filing of a private complaint, that discretion is not unfettered, and necessarily involves review by the trial court.”). In addition, this Court has stated that a judge’s independent review of a private complaint serves as a necessary check and balance of the prosecutor’s decision and protects against the possibility of error. Commonwealth v. Pritchard, 408 Pa.Super. 221, 233, 596 A.2d 827, 833 (1991).

We agree with the Attorney General’s assertion that the separation of powers doctrine, in general, prohibits the judiciary from intervening when the executive branch has freely exercised its discretionary authority to execute the laws of the Commonwealth. Cf. Sweeney v. Tucker, 473 Pa. 493, 375 A.2d 698 (1977). It is this doctrine that makes courts wary of interfering with or supervising a prosecuting attorney in the exercise of his discretion in controlling criminal prosecutions. In re Maloney, 431 Pa.Super. 321, 326, 636 A.2d 671, 676 (1994); Commonwealth v. Muroski, 352 Pa.Super. 15, 20, 506 A.2d 1312, 1314 (1986).

However, the separation of powers doctrine does not entirely preclude judicial review of discretionary decisions made by the executive branch. Our supreme court has stated that

“the mere possession of discretionary power by an administrative body does not make it wholly immune from judicial review, but the scope of that review is limited to the determination of whether there has been a manifest and flagrant abuse of discretion or a purely arbitrary execution of the agency’s duties or functions. That the court might have a different opinion or judgment in regard to the action of the agency is not a sufficient ground for interference; judicial discretion may not be substituted for administrative discretion.”

In re Petition of Acchione 425 Pa. 23, 30, 227 A.2d 816, 820 (1967), quoting Blumenschein v. Pittsburgh Hous. Auth., 379 Pa. 566, 572-73, 109 A.2d 331, 335 (1954), appeal dismissed, 350 U.S. 806, 76 S.Ct. 68, 100 L.Ed. 724 (1955). Furthermore, this standard has been applied to discretionary decisions made by a prosecutor. See Commonwealth v. Slick, 432 Pa.Super. 563, 565-65, 639 A.2d 482, 483, appeal denied, 538 Pa. 669, 649 A.2d 671 (1994).

Moreover, the Pennsylvania Constitution gives our supreme court the exclusive power to establish rules of procedure for our judicial system. Pa. Const, art. V, § 10(c); In re 42 Pa.C.S. § 1703, 482 Pa. 522, 394 A.2d 444 (1978). The interpretation of those rules, however, is beyond the jurisdiction of the Superior Court and any attempt to do so would be an unwarranted intrusion into the supreme court’s authority. Cf. Reilly by Reilly v. Southeastern Pa. Transp. Auth., 507 Pa. 204, 489 A.2d 1291 (1985). The function of this Court is limited to maintaining and effectuating the law as established by our supreme court. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985). Thus, we are not empowered to declare that a rule established by the supreme court violates the separation of powers doctrine.

Based upon the foregoing, we conclude that the separation of powers doctrine is not violated by a limited judicial review of a prosecutor’s decision, whether based upon policy considerations or otherwise, regarding a private criminal complaint.

Next, the Attorney General asserts that the common pleas court erred in concluding that he committed a gross abuse of discretion in disapproving Buckley’s private criminal complaint. In order to resolve this issue, we must determine the proper standard for a trial court to apply when it is asked to review a prosecutor’s disapproval of a private criminal complaint. Further, because of existing confusion concerning the proper standard for an appellate court to apply when reviewing a trial court’s determination in such a case, we must clarify that standard as well.

This Court first attempted to establish a standard for reviewing a prosecutor’s determination regarding the approval of a private criminal complaint in Commonwealth v. Eisemann, 276 Pa.Super. 543, 419 A.2d 591 (1980). In Eisemann, this Court stated that “ ‘[t]he judge’s independent review of the complaint checks and balances the [prosecutorj’s decision and further hedges against possibility of error....’” Id. at 546, 419 A.2d at 592, quoting In re Petition of Piscanio, 235 Pa.Super. 490, 495, 344 A.2d 658, 661 (1975). Further, we emphasized the need for courts to give deference to the prosecutor’s discretion because his decision regarding a private criminal complaint “may well depend on matters of policy wholly separate and apart from the existence or nonexistence of probable cause.” Id. Thus, while a court must give proper deference to the prosecutor as a member of the executive branch, it must also, in the interests of justice, ensure that the prosecutor does not make his determinations regarding a private criminal complaint without support for his conclusions. After balancing these competing policy interests, we concluded that “a court should not interfere with the exercise of prosecutorial discretion under Rule [106] unless there has been a gross abuse of discretion.” Id. at 546, 419 A.2d at 593. However, the Eisemann court failed to establish which court would review the prosecutor’s decision using the gross abuse of discretion standard.

The Eisemann standard of review was cited with approval in In re Wood, 333 Pa.Super. 597, 482 A.2d 1033 (1984). However, this Court, again, failed to clarify which court should apply the gross abuse of discretion standard. Subsequently, our Court reviewed this standard in Commonwealth v. Muroski, 352 Pa.Super. 15, 506 A.2d 1312 (1986) (en banc), and, for the first time, concluded that an appellate court does not directly review the actions of the prosecutor. Rather, this Court established that an appellate court’s function in reviewing an appeal from the trial court’s decision regarding a prosecutor’s approval or disapproval of a private criminal complaint is to “determine whether the trial court abused its discretion or committed an error of law....” Id. at 19, 506 A.2d at 1314. In addition, we note that Judge Spaeth, in his concurring and dissenting opinion, attempted to clarify the trial court’s function in such an action by stating that “[t]he issue before the trial court was whether in refusing to approve the complaint the district attorney had grossly abused his discretion.” Id. at 31, 506 A.2d at 1321.

In 1989, our supreme court first distinguished between a prosecutorial decision that is based upon a policy determination and one that is based upon a legal evaluation of the sufficiency of the complaint. In Commonwealth v. Benz, 523 Pa. 203, 565 A.2d 764 (1989) (plurality), a private complaint was disapproved for insufficient evidence. The common pleas court applied the Eisemann standard and held that the prosecutor did not abuse his discretion in disapproving the complaint. This Court reversed, finding that the evidence established a prima facie case and, accordingly, directed the district attorney to prosecute. Commonwealth v. Benz, 373 Pa.Super. 629, 536 A.2d 321 (1987). The supreme court affirmed this decision, concluding that the prosecutor’s decision not to proceed with the private criminal complaint required an independent review of his legal judgment. Benz, supra, 523 Pa. at 209-10, 565 A.2d at 767. The supreme court further concluded that, because the prosecutorial decision was based upon a legal evaluation of the merits of the case, this review was not an intrusion into prosecutorial discretion. Id. In a footnote, the court distinguished between a prosecutorial decision based upon a policy determination and one based upon a legal evaluation of the merits of the case. The court stated that “[i]f the district attorney had stated policy reasons to support the decision not to prosecute, this Court would show the deference accorded to such a discretionary use of the executive powers conferred in that officer.” Id. at 208 n. 4, 565 A.2d at 767 n. 4.

This distinction between a policy based determination and a legal evaluation of the sufficiency of the complaint was adopted by this Court in Commonwealth v. Jury, 431 Pa.Super. 129, 636 A.2d 164 (1993), appeal denied, 537 Pa. 647, 644 A.2d 733 (1994). In Jury, we determined that this Court reviews a prosecutor’s decision regarding the disapproval of a private criminal complaint by applying the following standard:

When the district attorney rests the disapproval of a private criminal complaint on wholly discretionary matters of policy, this Court will not disturb that determination, absent a gross abuse of discretion. When the district attorney bases a dismissal solely on a lack of evidence, however, this Court will apply a de novo standard of review because such a decision is not entitled to the same deference afforded a policy decision not to prosecute, even where a prima Jade case exists.

Id. at 137, 636 A.2d at 168 (citations omitted). Furthermore, Jury cites the footnote in Benz in support of its conclusion that the Superior Court will perform a de novo review of the legal evaluation by the prosecutor. This standard has been followed in In re Maloney, 431 Pa.Super. 321, 636 A.2d 671 (1994), and Commonwealth v. Metzker, 442 Pa.Super. 94, 658 A.2d 800 (1995).

Although we continue to find validity in a court giving deference to a prosecutor’s policy decision not to prosecute a private criminal complaint, we recognize the need to distinguish between the standard of review to be used by the trial court and the appellate court. Jury incorrectly establishes that an appellate court directly reviews the prosecutor’s decision regarding a private criminal complaint. However, Rule 106 reserves this function to the court of common pleas. Thus, we must reject Jury's standard and establish-the folio-wing as the appropriate standard of review.

When a trial court is asked to review a prosecutor’s disapproval of a private criminal complaint, the trial court must first determine the rationale behind the prosecutor’s decision. If the prosecutor’s decision was based upon a legal evaluation of the sufficiency of the complaint, then the trial court must undertake a de novo review of the complaint to ascertain whether it establishes a prima facie cause of action. If, however, the prosecutor’s decision was based upon a policy determination that it would not be in the best interests of the Commonwealth to prosecute, then the trial court must defer to the prosecutor’s discretion absent a gross abuse of that discretion.

In determining whether a gross abuse of discretion has occurred, the common pleas court must consider whether the policy advanced by the prosecuting authority comports with both the law and justice. A policy must embrace the general principles by which the prosecutor is guided in the management of its public responsibilities. A policy connotes a definite course or method of action selected in light of given conditions to guide and determine both present and future decisions. Therefore, it is expected that a prosecutor should be prepared to advance evidence that confirms the establishment of the policy, as well as corroborates its application to matters of similar,, or like, import.

This in no way suggests that the common pleas court may substitute its judgment for that of the prosecutor. But where the prosecutor seeks to rest the decision not to prosecute on policy grounds, the prosecutor must be prepared to come forward with a clear statement as to the particular policy that dictates withholding prosecution as well as how that policy relates to the particular facts being advanced by the private prosecutor.

When an appeal is brought from a common pleas court’s decision regarding the approval or disapproval of a private criminal complaint, an appellate court is limited to ascertaining the propriety of the trial court’s actions. Thus, our review is limited to determining whether the trial court abused its discretion or committed an error of law.

We now apply these standards to the facts of this case. In disapproving the private criminal complaint, the Attorney General provided several reasons for his decision not to pursue criminal charges against Brown; namely: (1) there was no proof of a criminal conspiracy; (2) Brown’s conflicting accounts were “patently obvious to everyone” and actually benefitted Buckley by securing his acquittal; (3) the trial would consume too much additional time and money; (4) Brown had already been incarcerated for two years as a result of his guilty pleas. Attachment to Response to Commonwealth’s Disapproval of Private Criminal Complaint, filed November 17, 1993. The Attorney General’s decision regarding the eight charges in the complaint that are the subject of this appeal was based upon a policy determination that it would not be in the best interests of the Commonwealth to initiate prosecution. Thus, the trial court was limited to determining whether the prosecutor committed a gross abuse of discretion.

The Attorney General contends that the trial court erred when it determined that he had committed a gross abuse of discretion in disapproving the private criminal complaint. The trial court, in reviewing the Attorney General’s decision, determined that there was no acceptable policy advanced by the Commonwealth for its decision not to prosecute Brown on the perjury and related charges. Trial Court Opinion, filed January 11,1994 at 8. The trial court concluded that the Commonwealth could not have a policy that ignores Brown’s criminal activities. Thus, it concluded that the Attorney General committed a gross abuse of discretion when disapproving the private criminal complaint. Our review of the record convinces us that the trial court has used the correct standard to evaluate the Attorney General’s decision. Thus, our review is limited to determining whether the trial court committed an abuse of discretion or error of law.

In support of the claim that policy considerations existed that required him to disapprove the private criminal complaint, the Attorney General asserts that Brown’s falsehoods were obvious to everyone and benefitted Buckley by guaranteeing his acquittal. The trial court rejected this argument as frivolous. Id. at 8-9. We agree. The Attorney General cites no authority, nor has our research disclosed any, in support of his claim that obvious falsehoods will not be prosecuted. Rather, it appears that Brown’s perjury undermined the investigation into Wilson’s murder and, thus, more strongly supports the conclusion that he should be punished for his wrongdoing. Accordingly, we agree with the trial court’s conclusion that this assertion cannot serve as the basis for a policy that requires the disapproval of this private complaint. Therefore, we conclude that the trial court did not err or abuse its discretion in making this determination.

The Attorney General also claims that policy compels the disapproval of the private criminal complaint because prosecuting Brown on the perjury charges would be too costly in terms of time and resources. . The trial court noted that the Commonwealth regularly expends large amounts of money pursuing minor offenses. Id. In addition, the trial court concluded, and we agree, that the costs of prosecuting this complaint would not be excessive due to the overwhelming evidence of Brown’s perjury. Id. While this particular policy has merit, the Attorney General did not advance any evidence that would bring this private criminal complaint within the parameters of that policy. Accordingly, the trial court did not abuse its discretion or commit an error of law.

Next, the Attorney General asserts that prosecution of the private criminal complaint is not warranted because Brown spent over two years in prison in connection with Wilson’s murder. The trial court, in dismissing this argument, correctly noted that one who commits a crime while in prison will be charged and brought to trial for those crimes. Id. The trial court further concluded that it is not the policy of the Commonwealth to ignore criminal activity. Thus, Brown’s incarceration on an unrelated charge is irrelevant to the decision of whether to prosecute him for other crimes. Accordingly, we agree with the trial court that the Attorney General’s assertion does not support a policy that requires the disapproval of this private criminal complaint. Thus, we can find no abuse of discretion or error of law.

In his brief to this Court, the Attorney General argues that the trial court simply substituted its opinion for that of the prosecutor and labelled the prosecutor’s decision a gross abuse of discretion. Initially, we note that a court does not have the authority to substitute its judgment for that of the prosecutor in evaluating the viability of a private criminal complaint. Cf. In re Petition of Acchione, supra. However, in the present case, we conclude that the Attorney General has failed to produce any evidence of a clearly defined policy that is consistently used to review the merits of a private criminal complaint. A prosecutor, in reviewing a private criminal complaint, cannot simply assert that it is against its policy to prosecute. Instead, the prosecutor must demonstrate that a clearly defined policy has been established that can be uniformly applied to such complaints. If the Attorney General had submitted evidence of an established policy, the trial court would have been able to determine whether, in this case, the Attorney General had actually followed that policy.

Here, the trial court concluded, and we agree, that Buckley established a prima facie case that supports charging Brown with the crimes enunciated in charges 1 through 8 of the private criminal complaint. Although the Attorney General claims that its decision not to prosecute was a policy decision, this vague claim of “policy” is unsupported by reference to a specific policy that requires the disapproval of this private criminal complaint. Accordingly, we conclude that the trial court did not abuse its narrowly limited discretion when it found that the Attorney General failed to advance sufficient policy reasons in support of the disapproval of the private criminal complaint.

Based upon the foregoing, it is our determination that the trial court did not abuse its discretion or commit an error of law when it approved Buckley’s private criminal complaint. Thus, we affirm the order that directed the Commonwealth to pursue the complaint regarding the first eight charges against Brown.

Order AFFIRMED.

KELLY, J., files a concurring opinion.

BECK and FORD ELLIOTT, JJ., joined the opinion by Johnson, J., and the concurring opinion by Kelly, J.

SAYLOR, J., files a dissenting opinion which is joined by CAVANAUGH, J.

KELLY, Judge,

concurring:

I agree with and join the majority’s resolution of the separation of powers issue raised by the Attorney General. I also agree with the majority’s ultimate decision to affirm the common pleas court’s conclusion that the Attorney General grossly abused his discretion in disapproving Mr. Buckley’s private criminal complaint. I write separately, however, to express my dissatisfaction with the majority’s discussion of this Court’s standard of review with regard to private criminal complaints. Accordingly, I concur.

In its opinion, the majority states that Commonwealth v. Jury, 431 Pa.Super. 129, 636 A.2d 164 (1993), allocatur denied, 537 Pa. 647, 644 A.2d 733 (1994), “incorrectly establishes that an appellate court directly reviews the prosecutor’s decision regarding a private criminal complaint.” (Majority Opinion at 466). I believe that the majority misreads that case. In reality, Commonwealth v. Jury, supra, establishes the same standard of review which the majority elaborates upon in its opinion.

In Commonwealth v. Jury, supra, this Court acknowledged that the proper procedure for an affiant to challenge the disapproval of a private criminal complaint is to file a complaint with the common pleas court. Id. at 136-37, 636 A.2d at 167-68. Hence, direct appellate review of the disapproval of private criminal complaints was not even contemplated in, let alone established by, that case. We stated only that when a private criminal complaint is disapproved based upon “wholly discretionary matters of policy, this Court will not disturb that determination absent a gross abuse of discretion.” Id. at 137, 636 A.2d at 168 (citing Commonwealth v. Pritchard, 408 Pa.Super. 221, 283, 596 A.2d 827, 833 (1991)); In re Wood, 333 Pa.Super. 597, 602, 482 A.2d 1033, 1036 (1984), quoting Commonwealth v. Eisemann, 276 Pa.Super. 543, 546, 419 A.2d 591, 593 (1980)). We further stated that “[s]uch a policy decision is subject only to an abuse of discretion standard by the reviewing court.” Id. at 144, 636 A.2d at 171 (citing Commonwealth v. Benz, 523 Pa. 203, 565 A.2d 764 (1989); Commonwealth v. Pritchard, supra) (emphasis added). Thus, contrary to the majority’s opinion, Commonwealth v. Jury, supra, recognizes that the reviewing court’s, i.e., the appellate court’s, standard of review from the common pleas court’s ruling on the disapproval of a private criminal complaint by the Attorney General is that of abuse of discretion and the common pleas court’s standard of review from such a disapproval is, in turn, that of gross abuse of discretion.

What Commonwealth v. Jury, supra, also recognizes and the majority’s opinion does not is that within these standards of review is an implicit and undeniable proposition. This Court cannot affirm the common pleas court’s order approving Mr. Buckley’s private criminal complaint unless we also contemporaneously conclude that the Attorney General grossly abused his discretion in disapproving it. In other words, if the Attorney General did not grossly abuse his discretion in disapproving Mr. Buckley’s private criminal complaint, then we would have to reverse the common pleas court’s order because its issuance would necessarily be an abuse of discretion. See Commonwealth v. Metzker, 442 Pa.Super. 94, 97, 658 A.2d 800, 801 (1995) (policy decision not to prosecute will not be disturbed absent gross abuse of discretion); In re Maloney, 481 Pa.Super. 321, 332, 636 A.2d 671, 676-77 (1994) (policy decision not to prosecute where facts suggested strong possibility of self-defense “cannot be deemed a gross abuse of discretion”); Commonwealth v. Eisemann, supra at 546, 419 A.2d at 593 (prosecutorial discretion to disapprove private criminal complaint should not be disturbed absent gross abuse of discretion). Unquestionably, my distinguished colleague, Judge McEwen, recognized this when, writing for an en banc panel of this Court, he stated:

... we find that the ruling of the trial court was not an abuse of discretion and, thereby, of course, conclude that the district attorney did not abuse his discretion when he disapproved the private criminal complaint of appellant.

Commonwealth v. Muroski, 352 Pa.Super. 15, 23, 506 A.2d 1312, 1317 (1986) (en banc) (emphasis added).

The reason that our abuse of discretion standard of review requires an inquiry into the common pleas court’s gross abuse of discretion standard of review is really quite simple. Our Supreme Court has defined abuse of discretion as follows:

“... [a]n abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable,- or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.” (Citations omitted).

Commonwealth v. Wade, 485 Pa. 453, 467, 402 A.2d 1360, 1367 (1979) (quoting Garrett’s Estate, 335 Pa. 287, 293, 6 A.2d 858, 860 (1939)). Further, the substitution of judicial discretion for that of the Attorney General may not occur. See Commonwealth v. Slick, 432 Pa.Super. 563, 565, 639 A.2d 482, 483 (1994), allocatur denied, 538 Pa. 669, 649 A.2d 671 (1994) (quoting In re Petition of Acchione, 425 Pa. 23, 30, 227 A.2d 816, 820 (1967)). Consequently, we cannot determine if the common pleas court misapplied the law or substituted its discretion for that of the Attorney General without also examining the common pleas court’s gross abuse of discretion standard of review in analyzing the reasons provided for the disapproval of a private criminal complaint.

Instantly, the common pleas court would have misapplied the law and substituted its discretion for that of the Attorney General if it approved Mr. Buckley’s private criminal complaint without evidence of a gross abuse of the Attorney General’s discretion in disapproving it. Thus, the abuse of discretion standard which governs our review of the common pleas court’s order approving Mr. Buckley’s private criminal complaint inherently requires our inquiry into the gross abuse of discretion standard employed by the common pleas court in reviewing the Attorney General’s disapproval of that complaint. Indeed, the majority unknowingly analyzes the common pleas court’s standard of review with regard to the Attorney General’s disapproval of Mr. Buckley’s private criminal complaint via our standard of review with regard to the ruling of that court by continually agreeing with the common pleas court’s application of the facts of this case. (See Majority Opinion at 465-470). Therefore, although I agree with the ultimate result which the majority incongruously reaches, I conclude that its criticism of Commonwealth v. Jury, supra, is unwarranted and its standard of review is not completely accurate. Accordingly, because I conclude that the common pleas court did not misapply the law or substitute its discretion for that of the Attorney General in approving Mr. Buckley’s private criminal complaint and finding that the Attorney General’s reasons for disapproving that complaint constitute a gross abuse of discretion, I concur.

BECK and FORD ELLIOTT, JJ., joined.

SAYLOR, Judge,

dissenting:

The effect of the majority’s decision is to order the elected Attorney General of this Commonwealth to prosecute a criminal case when he has declined to do so .in the first instance in the exercise of his prosecutorial discretion. Because of the deference which I would accord to such prosecutorial decision, and because the record is devoid of any showing that the policy reasons advanced by the Attorney General in support of his declination were merely pretextual or offered in bad faith, I respectfully dissent.

The Attorney General is the chief law enforcement officer of this Commonwealth, and the district attorneys are the chief law enforcement officers for the counties in which they are elected. Commonwealth Attorneys Act, 71 P.S. § 732-206(a). It is well established that a prosecutor in this Commonwealth has broad discretion concerning the decision of whether criminal charges should be brought in any given case. “ ‘A District Attorney has a general and widely recognized power to conduct criminal litigation and prosecutions on behalf of the Commonwealth, and to decide whether and when to prosecute, and whether and when to continue or discontinue a case.’ ” Commonwealth v. Stipetich, 539 Pa. 428, 430, 652 A.2d 1294, 1295 (1995), quoting Commonwealth v. DiPasquale, 431 Pa. 536, 540-541, 246 A.2d 430, 432 (1968) (emphasis omitted). In exercising this power, a prosecutor is “... obligated to perform this task intelligently and impartially ... [, and] is under no compulsion to prosecute every alleged offender.... ” Commonwealth v. Malloy, 304 Pa.Super. 297, 302, 450 A.2d 689, 691 (1982) (citation omitted). “Thus, the district attorney is permitted to exercise sound discretion to refrain from proceeding in a criminal case whenever he, in good faith, thinks that the prosecution would not serve the best interests of the state.” Id., 304 Pa.Super. at 303, 450 A.2d at 692.

The Attorney General’s decision to disapprove Buckley’s private criminal complaint was reviewed by the trial court pursuant to Pennsylvania Rule of Criminal Procedure 106. Criminal Rule 106 reposes an awesome power in the judiciary, namely, the authority to order a prosecutor, an elected official of the executive branch of our government, to prosecute a criminal complaint in the name of the Commonwealth. With this grant of power comes a concomitant responsibility to exercise such oversight in an extremely judicious manner.

Therefore, our courts have traditionally extended great deference to a prosecutor’s decision to decline prosecution when the declination is grounded upon policy considerations. It follows that a reviewing court will not interfere with a prosecutor’s exercise of discretion in such instance, absent a showing of a gross abuse of the prosecutor’s discretionary powers. This deference is rooted in the constitutional principle of separation of powers. See, Commonwealth v. Buonopane, 410 Pa.Super. 215, 221, 599 A.2d 681, 684 (1991) (“... interference with the prosecutor’s discretionary functions, absent a threshold showing of a valid claim of purposeful abuse, violates the constitutional principle of separation of powers.”); see also, Commonwealth v. Slick, 432 Pa.Super. 563, 639 A.2d 482 (1994), and Commonwealth v. Benz, 523 Pa. 203, 565 A.2d 764 (1989).

The Superior Court has summarized these principles as follows:

When the district attorney rests the disapproval of a private criminal complaint on wholly discretionary matters of policy, this Court will not disturb that determination, absent a gross abuse of discretion.... The special deference extended a policy decision not to prosecute arises from the deference accorded the discretionary use of executive powers conferred in the district attorney.

Commonwealth v. Jury, 431 Pa.Super. 129, 137, 636 A.2d 164, 168 (1993) (citations omitted) (emphasis supplied). In Commonwealth v. Slick, 432 Pa.Super. 563, 639 A.2d 482 (1994), the Superior Court further stated:

... courts will not review the actions of governmental bodies or administrative tribunals involving acts of discretion, in the absence of bad faith, fraud, capricious action or abuse of power; they will not inquire into the wisdom of such actions or into the details of the manner adopted to carry them into execution. It is true that the mere possession of discretionary power by an administrative body does not make it wholly immune from judicial review, but the scope of that review is limited to the determination of whether there has been a manifest and flagrant abuse of discretion or a purely arbitrary execution of the agency’s duties or functions.

Id., 432 Pa.Super. at 564-565, 639 A.2d at 483, quoting In re Petition of Acchione, 425 Pa. 23, 30, 227 A.2d 816, 820 (1967). Accord, Pennsylvania Social Services Local 668 v. Pennsylvania Labor Relations Board, 481 Pa. 81, 392 A.2d 256 (1978).

Courts have also recognized, however, that the phrase “prosecutorial discretion” will not be permitted to serve as “a magical incantation which automatically provides a shield for arbitrariness.” Commonwealth v. Muroski, 352 Pa.Super. 15, 32-33, 506 A.2d 1312, 1322-1323 (1986) (Spaeth, J., dissenting). Accordingly, prosecutors may transgress the bounds of their discretionary authority by engaging in a pattern of discriminatory, retaliatory or arbitrary prosecutions, or refusing to. prosecute certain classes of people or crimes. See, e.g., Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); Nader v. Saxbe, 497 F.2d 676, 679 (D.C.Cir. 1974); Commonwealth v. Komatowski, 347 Pa. 445, 450, 32 A.2d 905, 908 (1943). See also, Commonwealth v. Muroski, 352 Pa.Super. 15, 32-33, 506 A.2d 1312, 1322-1323 (1986) (en banc) (collecting cases).

In this case, the Attorney General, in disapproving the private criminal complaint, stated that “It is the considered good faith belief of the Office of the Attorney General that the best interests of the Commonwealth would not be advanced through a prosecution of Michael Brown____” After enumerating several practical considerations in addition to a review of the evidence available against Brown, the Attorney General concluded that “[t]he decision to decline prosecution in this matter is based upon factors broader than simply the quantum of evidence available and is founded in the policy considerations inherent in this Office as public prosecutor.” Finally, the Attorney General concluded that such decision “would be the same whether or not a prima facie case could be established .... ” See, Commonwealth v. Jury, 431 Pa.Super. 129, 636 A.2d 164 (1993) (even though prima facie case may exist on face of complaint, prosecutor is not bound to prosecute, and may, in proper exercise of discretion, disapprove complaint wholly for policy reasons).

In reviewing the Attorney General’s decision, the trial court acknowledged the deferential “gross abuse of discretion” standard which was to guide its review but proceeded to re-weigh the factors upon which the Attorney General had based his decision and substitute its own judgment for that of the Attorney General, who had ultimately concluded that prosecution would not serve the ends of justice. This was, I believe, an impermissible usurpation of the discretionary authority reposed in the Attorney General. “That the court might have a different opinion or judgment in regard to the action of the [prosecutor] is not a sufficient ground for interference; judicial discretion may not be substituted for administrative discretion.” Commonwealth v. Slick, supra, 432 Pa.Super. at 564-565, 639 A.2d at 483.

The trial court made no finding, nor indeed does the record disclose any evidence, that the Attorney General’s reasons for disapproving Buckley’s complaint were merely pretextual or advanced in bad faith, or that the decision to disapprove the complaint was based upon any improper motive. Rather, the Attorney General’s actions in disapproving the complaint were predicated upon his determination that it would not be in the best interests of the state to initiate prosecution, given the fact that Brown’s perjury at trial was so obvious as to be harmless, that there were significant financial concerns, and that Brown was already incarcerated on other charges.

Although the majority is concerned by what it views as the failure of the Attorney General to produce evidence of the policy underlying his decision, in my judgment a judicial tribunal is bound to accept the assertion of the Commonwealth’s chief law enforcement officer that he chooses not to devote his limited resources to prosecuting a particular individual for a particular crime, absent a showing of bad faith or improper motive. Indeed, a decision regarding the prosecution of a case often involves “the allocation of scarce resources.” Mummau v. Ranch, 531 F.Supp. 402, 405 (E.D.Pa. 1982), affirmed, 687 F.2d 9 (3d Cir.1982), citing United States v. Berrigan, 482 F.2d 171 (3d Cir.1973).

In summary, I do not believe that Rule 106 was intended to permit a trial court, at the behest of a private individual, to compel the initiation of a prosecution deemed by the prosecutor to be against public interest. Therefore, I respectfully dissent.

CAVANAUGH, J., joined.

      . In this case, we upheld a common pleas court’s affirmance of a district attorney's disapproval of a private criminal complaint based upon lack of probable cause. Id.


source: Caselaw Access Project

author: OLSZEWSKI, Judge: BECK, Judge

license: Public Domain

text:
    669 A.2d 996
    COMMONWEALTH of Pennsylvania, v. Tracy Allen PENROSE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 28, 1995.
    Filed Dec. 28, 1995.

      William J. McCabe, Greensburg, for appellant.
    Timothy C. Andrews, Assistant District Attorney, Greens-burg, for Commonwealth, appellee.
    Before BECK, HUDOCK, and OLSZEWSKI, JJ.:
   OLSZEWSKI, Judge:

This appeal is from an order of the Court of Common Pleas of Westmoreland County entered April 17, 1995, which denied appellant’s Post Conviction Relief (PCRA) petition. We affirm.

On February 21, 1991, a fire occurred at the residence of appellant, Tracy Penrose, in Bolivar, Pennsylvania. After firefighters extinguished the fire, appellant’s wife was found dead with injuries to her head in a closet in the upstairs bedroom. Fire investigators examined the scene and determined that a flammable liquid was poured around the body of appellant’s wife and down the steps of the residence leading to the front door. Initially, appellant made a statement to police which indicated that he had fallen asleep and that he heard his wife exclaiming that a fire had broken out. He said he could not save his wife, but was able to save their child and some personal property from the house. When appellant was confronted with inconsistencies in his initial statement to the police, he recanted and gave a second statement which he claimed was the “truth.” In the second statement, appellant admitted striking his wife on the head with a baseball bat or iron, pouring gasoline around the house, and accidentally starting a fire. Testimony and evidence produced at trial indicated that appellant hit his wife on the head in more than two places and the injuries to her skull were consistent with being struck with a heavy iron.

On February 14, 1992, appellant was found guilty by a jury of first-degree murder and arson. Then, appellant was sentenced to concurrent terms of life imprisonment and ten to twenty years imprisonment, respectively, on the first-degree murder and arson convictions. Appellant’s term of imprisonment on the arson conviction was subsequently reduced to five to ten years after a successful motion to modify sentence. Thereafter, appellant obtained new counsel and filed a direct appeal to this Court which included three substantive claims and three ineffective assistance of counsel claims. We affirmed on all issues except for two of the ineffective assistance of counsel claims. Commonwealth v. Penrose, 435 Pa.Super. 650, 645 A.2d 892 (1994). We relinquished jurisdiction and remanded the two issues to the trial court to determine: (1) whether trial counsel had a reasonable basis for allowing appellant’s confession to go out with the jury and (2) whether appellant’s claim that a prosecuting officer supplied appellant with an anti-depressant drug during the trial had merit and if trial counsel had a reasonable basis for not investigating such matter. Id. at 12,13.

On the date of the scheduled evidentiary hearing, November 30, 1994, appellant presented the trial court with three additional ineffective assistance of counsel claims. Such claims were presented in the form of a PCRA petition. Accordingly, these claims will be treated as PCRA claims by this Court. The trial court ruled on all outstanding issues, including the two issues remanded back from the Superior Court and the three new ineffective assistance of counsel claims in appellant’s PCRA petition. Trial court opinion, 4/17/95. The lower court held on the two issues remanded that: (1) trial counsel was not ineffective for failing to object to the submission of appellant’s confession to the jury during its deliberations because such counsel had a reasonable basis in allowing the confession to go out with the jury, and (2) trial counsel was not ineffective for failing to investigate and raise claims that appellant had received unauthorized medication during the trial which allegedly impaired his ability to meaningfully participate in his defense because the underlying claim had no merit. Id. at 6, 12. In addition, the trial court held, with respect to appellant’s PCRA petition, that trial counsel was not ineffective in: (1) failing to mention the testimony of appellant’s expert, Dr. Levit, during closing arguments; (2) encouraging the jury during closing argument to review appellant’s confession; and (3) arguing to the jury that appellant should be found guilty of involuntary manslaughter which is inconsistent with the defense of diminished capacity. Id. at 6-7. This timely appeal followed.

Two briefs were filed on behalf of appellant in the instant appeal. A counseled brief (dated July 24, 1995) was filed with this Court. Further, appellant filed a pro se brief (dated July 20, 1995). “We will accept for filing pro se appellate briefs, but we will not review a pro se brief if a counseled brief has been filed, either before, simultaneously with or after, the pro se, due to judicial confusion and delay.” Commonwealth v. Ellis, 398 Pa.Super. 538, 548, 581 A.2d 595, 600 (1990). Thus, we will not consider appellant’s claims included in his pro se brief; rather, we will only consider those issues raised in his counseled appellate brief. Id.

In this appeal, appellant raises four issues of ineffectiveness of trial counsel in: (1) failing to object to, or prevent the submission of appellant’s confession to the jury during its deliberations; (2) failing to investigate and raise on direct appeal appellant’s allegations that he received unauthorized and unprescribed medication during trial from a prosecuting officer, which allegedly impaired his ability to meaningfully participate in his defense; (3) failing to mention the testimony of appellant’s expert witness, Dr. Levit, during closing arguments; and (4) encouraging the jury to review appellant’s confessed statement in deliberations. The first two issues are being appealed from the evidentiary hearing ordered from the original direct appeal at Commonwealth v. Penrose, 435 Pa.Super. 650, 645 A.2d 892 (1994). Accordingly, these issues will be treated as a direct appeal while the remaining two issues which were raised in appellant’s PCRA petition, will be reviewed as a first appeal under the PCRA.

Appellant alleges ineffective assistance of counsel in each of the above issues. The well-established three-pronged test for evaluating such claims is as follows:

The threshold inquiry in ineffectiveness claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim. Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989); Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985). Once this threshold is met we apply the “reasonable basis” test to determine whether counsel’s chosen course was designed to effectuate his client’s interests. If we conclude that the particular course chosen by counsel had some reasonable basis, our inquiry ceases and counsel’s assistance is deemed effective. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). If we determine that there was no reasonable basis for counsel’s chosen course then the accused must demonstrate that counsel’s ineffectiveness worked to his prejudice. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). The burden of establishing counsel’s ineffectiveness is on the appellant because counsel’s stewardship of trial is presumptively effective. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985).

Commonwealth v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194-195 (1994). A fourth prong is necessary for a successful ineffectiveness claim under the PCRA. An appellant, proceeding under the PCRA, must also prove that the ineffective assistance of counsel must have “so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(h); Commonwealth v. Granberry, 434 Pa.Super. 524, 529, 644 A.2d 204, 207 (1994). Since appellant fails to meet either the first or second prongs of the ineffective assistance of counsel test on each of his four claims, his appeal must fail.

Appellant’s first contention, that trial counsel was ineffective in failing to prevent the submission of appellant’s confession to the jury during its deliberations, has arguable merit in the underlying claim, but fails because counsel had a reasonable basis in effecting her client’s interests by allowing the confession to go to the jury. Appellant’s underlying claim has arguable merit since Pennsylvania Rule of Criminal Procedure 1114 states:

Upon retiring for deliberations, the jury shall not be permitted to have a transcript of any trial testimony, nor a copy of any written confession by the defendant, nor a copy of the information or indictment.

Pa.R.Crim.P. 1114 (emphasis added). Therefore, counsel allowed appellant’s written confession to go out with the jury in contravention of one of our Rules of Criminal Procedure. Trial counsel, however, had a reasonable basis for allowing the jury to take appellant’s statement with it during deliberations. Accordingly, our standard for determining whether counsel had a reasonable basis for his or her actions is as follows:

“Our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that counsel’s decisions had any reasonable basis.”

Pierce, 515 Pa. at 158, 527 A.2d at 975 (quoting Commonwealth ex rel. Washington v. Maroney, 427 Pa. at 604, 235 A.2d at 352-353).

With these standards in mind, a thorough review of the trial and the evidentiary hearing records in the instant case indicates that trial counsel had a reasonable basis for failing to object to appellant’s statement being submitted to the jury. In trial counsel’s opening argument, counsel admitted that appellant had killed his wife, but claimed that he was suffering from a mental defect at the time which prevented him from forming the specific intent to kill his wife. Then appellant’s expert witness, Dr. Levit, testified that appellant’s capacity was diminished at the time of the killing because appellant’s judgmental abilities were impaired. This testimony, however, was severely discredited by the Commonwealth’s expert witness, Dr. Ramm. Dr. Ramm testified that the tests employed by Dr. Levit were not performed according to standard procedures in the profession and only reflected appellant’s state of mind at the time of testing (approximately six months after the killing) rather than the time of the killing. During the trial, counsel made a strategic decision to abandon the diminished capacity defense because such defense was no longer effective due to the discrediting of appellant’s expert witness and counsel’s knowledge of low-grade witness instructions with respect to appellant’s expert testimony which the judge was required to recite to the jury. Appellant’s trial counsel thus shifted her strategy to reducing the charge below first-degree murder and abandoning the diminished capacity defense. Jury instructions were given for first- and third-degree murder, self-defense, and voluntary and involuntary manslaughter. By allowing the jury to take with them appellant’s confession, appellant’s testimony that he and his wife had fought that morning and that his wife had tried to strike him with a baseball bat on such morning could be corroborated. So, trial counsel was attempting to employ either “heat of passion” or self-defense theories in reducing or nullifying the charges levied against appellant. In the evidentiary hearing, trial counsel accordingly testified:

Q. Did you reach a conclusion during the trial that it would have been in his [appellant’s] best interests for the confession to go out with the jury?
A. That’s correct, yes.
Q. In fact, do you recall during your closing argument inviting the jury on at least two occasions to read the statement?
A. Yes.
Q. Why did you do that?
A. Because I thought it was to his benefit that they read the statement. He gave his explanation as to what happened that morning. His explanation was [sic] could lead a jury to believe that it was an argument that existed that morning, and that he killed his wife during the course of argument. I believed that, that there was a possibility of a voluntary manslaughter verdict.

N.T., 11/30/94 at 67-68.

Thus, the decision of appellant’s trial counsel to not object to the jury having a copy of appellant’s statement was a tactical decision in advancing those theories which she believed would be effective in appellant’s defense. Such strategy had a reasonable basis designed to effectuate her client’s interests, i.e., to prevent appellant from being found guilty of first-degree murder. Therefore, we hold that appellant had effective assistance of counsel with respect to his first claim. Pierce, supra.

In the same way, appellant claims, in his fourth issue (analyzed under the PCRA), that trial counsel was ineffective in encouraging the jury to review appellant’s confession in its deliberations. For the same reasons mentioned above, counsel had a reasonable basis in employing this strategy. As such, we hold that trial counsel’s action in encouraging the jury to review appellant’s confession in deliberations was effective assistance of counsel. Id.

Appellant’s second contention, that trial counsel was ineffective for failing to investigate and raise on direct appeal allegations that a prosecuting officer supplied appellant with unauthorized drugs which prevented him from meaningfully participating in his defense, fails under the first prong of the ineffectiveness test, as the underlying claim is without merit. This issue was originally remanded by us to the trial court to determine whether appellant’s claim had merit. The trial court held an evidentiary hearing and determined, via an examination of a number of witnesses including appellant, his trial counsel and the prosecuting officer, that appellant’s claims regarding the alleged medication were not credible. Trial court opinion, 4/17/95 at 10. Our Supreme Court has repeatedly held that on appellate review of criminal convictions, we will not weigh the evidence and thereby substitute our judgment for the finder of fact. Pierce, 537 Pa. at 530, 645 A.2d at 198 (citing Commonwealth v. Woodhouse, 401 Pa. 242, 261, 164 A.2d 98, 108 (1960)). To do so would require an assessment of the credibility of testimony which is clearly not our function. Pierce, 537 Pa. at 530, 645 A.2d at 198 (citing Commonwealth v. Sullivan, 436 Pa. 450, 456, 263 A.2d 734, 737 (1970), cert. denied, 400 U.S. 882, 91 S.Ct. 127, 27 L.Ed.2d 120 (1970)). Since the lower court assessed the credibility of the testimony and other evidence regarding appellant’s claims, we decline to substitute our judgment for that of such court. Therefore, because we find the appellant’s claims regarding the unauthorized medication to be without merit, trial counsel cannot be deemed ineffective for failing to investigate and advance such meritless claims. Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989); Pierce, supra.

Appellant’s third ineffective assistance of counsel claim (analyzed under the PCRA), that trial counsel failed to mention the testimony of appellant’s expert witness, Dr. Levit, in closing arguments, fails because trial counsel had a reasonable basis for such omission. As previously stated, the Commonwealth introduced the testimony of its expert, Dr. Ramm, to discredit the testimony of appellant’s expert about appellant’s state of mind at the time of the killing. Further, a low-grade witness instruction regarding Dr. Levit’s testimony was to be given to the jury. First, Dr. Levit testified that he performed a number of psychological tests on appellant and determined that appellant suffered from depression which made him incapable of forming the requisite intent to kill his wife. He concluded that appellant’s capacity was significantly diminished at the time of the killing due to his depression. Then, Dr. Ramm countered that Dr. Levit did not administer the tests according to standard procedures in the profession and that the tests only reflected appellant’s state of mind at the time he administered the tests (approximately six months after the killing). Furthermore, evidence was introduced by police officers that appellant gave no indication that he had a lack of understanding on the date of the incident. Accordingly, during the PCRA hearing, trial counsel testified that she wished to de-emphasize Dr. Levit’s testimony:

Q. How did you feel — or did that play any role in your decision not to emphasize his [Dr. Levit’s] testimony or mention it in your closing, any of those factors?
A. Both of those factors, as I recall, one being that the jury would receive a low grade instruction, secondly Dr. Levitt [sic] testified and was cross examined, and then I believe the Commonwealth’s first witness was Doug Ramm. I thought that the impact of both of their testimonies did not lend itself to a strong defense argument.

N.T., 11/30/94 at 85-86. Therefore, it is clear that trial counsel made a reasonable decision during the course of the trial that the testimony regarding the defense of diminished capacity had become so diluted that she chose not to emphasize it in closing arguments. Thus, she focused instead on reducing the charges from first-degree murder in the best interests of her client. Accordingly, we hold that there was no ineffectiveness in trial counsel’s decision to not mention appellant’s expert witness’s testimony in closing arguments since it was made in the interest of appellant and had a- reasonable basis. See Maroney, supra; Pierce, supra.

Therefore, based on the foregoing, we affirm the trial court’s order denying appellant’s ineffective assistance of counsel claims both on direct appeal and on appeal of appellant’s first PCRA petition.

Order affirmed.

Concurring Statement by BECK, J.

BECK, Judge

concurring:

I concur in the majority’s opinion because I believe that appellant failed to establish either that the underlying issue was meritorious or that the particular course of action chosen by counsel was unreasonable. Like my colleagues, I believe counsel here acted pursuant to a reasonably based trial strategy. For that reason, I would affirm the judgments of sentence.

I hesitate, however, to join the majority’s discussion regarding Commonwealth v. Buehl, 540 Pa. 493, 658 A.2d 771 (1995) and the standard for ineffectiveness claims under the PCRA. Unlike my colleagues, I am persuaded by Justice Cappy’s expression in Buekl, in which he opined that “the verbiage set forth in § 9543(a)(2)(h) is by constitutional mandate and logical application, nothing more than a recitation of the Pierce [traditional] standard of prejudice.” Id. at 522, 658 A.2d at 786.

Recognizing that this difference of opinion has no substantive effect on either the result or rationale in the instant case, I join the majority in all respects with the exception of footnote 8.

      . 42 Pa.C.S.A. § 9541 et seq.

        . Although the order of the lower court states that this entire appeal is related to appellant’s PCRA petition, part of this appeal relates to matters remanded back to the trial court on a direct appeal pursuant to our memorandum decision in this case, Commonwealth v. Penrose, 435 Pa.Super. 650, 645 A.2d 892 (1994).

      . 18 Pa.C.S.A. § 2501(a).

      . 18 Pa.C.S.A. § 3301(a)(l)(i).

      . Appellant had attempted to replace his current appellate counsel by motion to the trial court. However, appellant’s request to replace such counsel was denied in an order dated January 31, 1995.

      . Appellant’s pro se brief lacks the requirements of an appellant’s brief pursuant to Pa.R.A.P. 2111 and several of the accompanying rules for content of such briefs. Accordingly, appellant’s brief could also be quashed or dismissed since “the defects ... in the brief or reproduced record of the appellant . . . are substantial.” Pa.R.A.P. 2101; Commonwealth v. Sanford, 299 Pa.Super. 64, 67, 445 A.2d 149, 151 (1982).

      . Note that appellant has decided to drop, in this appeal, the third allegation of ineffective assistance of counsel included in his PCRA petition, namely that trial counsel argued to the jury that appellant should be found guilty of involuntary manslaughter which is inconsistent with the defense of diminished capacity.

      . In Commonwealth v. Buehl, 540 Pa. 493, 658 A.2d 771 (1995), three justices of an evenly divided Supreme Court stated the traditional three-pronged test for ineffective assistance of counsel and added:
      where a claim of ineffective assistance is advanced on collateral attack, the PCRA renders more stringent the prejudice requirement which must be satisfied before relief can be granted. Specifically, Section 9543 requires a defendant to prove that, counsel’s ineffectiveness "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii).

        Id. at 505, 658 A.2d at 777. The Court held that in one of defendant’s claims of ineffective assistance of counsel, alleging ineffectiveness for failure to request a cautionary instruction regarding certain evidence, defendant satisfied the three prongs of the traditional test. Id. at 507, 658 A.2d at 778-779. However, while the Court found that defendant was prejudiced, the ineffectiveness claim was denied under the PCRA because of the existence of circumstantial evidence which provided overwhelming proof of guilt, making the Court “unable to say that due to the omissionf] the adjudication of guilt [was] unreliable.” Id. at 508, 658 A.2d at 779. Hence, the three justices recognized that an additional fourth requirement exists for claims of ineffective assistance of counsel under the PCRA, i.e., that such ineffectiveness "so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place.” Id.; 42 Pa.C.S.A. § 9543(a)(2)(h).
      On the other hand, the one concurring and two dissenting justices in Buehl found only three (traditional) requirements under the PCRA because they believed that no "substantive distinction [exists] between the prejudice prong of the test for ineffectiveness of counsel and the language contained in 42 Pa.C.S.[A.] § 9543(a)(2)(h).” Id. at 515, 658 A.2d at 782. The concurrence believed that counsel’s omission did not result in prejudice to defendant while the dissent believed that such omission prejudiced defendant and satisfied the third prong of the ineffectiveness test, which they equated to the above PCRA mandate. Thus, the concurring and dissenting justices effectively found that there are only three requirements for a successful ineffective assistance of counsel claim under the PCRA, i.e., the traditional three-pronged test stated above.
      As we are persuaded by the three justices of our Supreme Court, who found that four elements are necessary for a successful ineffectiveness claim under the PCRA and our precedents which include the fourth prong as an additional requirement to the traditional three-pronged test under the PCRA (see, e.g., Commonwealth v. Szuchon, 534 Pa. 483, 633 A.2d 1098 (1993); Granberry, supra), we recognize the ineffectiveness test under the PCRA as having four prongs.


author: HUDOCK, Judge:

text:
    669 A.2d 1003
    COMMONWEALTH of Pennsylvania, Appellee, v. Victor MORALES, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 18, 1995.
    Filed Jan. 3, 1996.

      Anthony S. Beltrami, Assistant Public Defender, Bethlehem, for appellant.
    John M. Morganelli, District Attorney, Easton, for Commonwealth, appellee.
    Before CAVANAUGH, POPOVICH and HUDOCK, JJ.
   HUDOCK, Judge:

This is an appeal from the judgment of sentence after Appellant was convicted of tampering with physical evidence. Appellant was sentenced to incarceration for seven and one-half months. A timely post-sentence motion was denied by operation of law and this direct appeal followed. We affirm.

The facts may be summarized as follows: On April 7, 1994, investigators Stuart Bedics (Bedics) and Colleen Mower (Mower) were participating in an undercover drug surveillance of State and Evans Streets in the City of Bethlehem. From an unmarked vehicle and with the aid of binoculars, Bedics was observing a known heroin dealer (Torres). He would watch a transaction take place and then radio a description of the buyer to other undercover team members, who in turn, would attempt to apprehend the buyer. Bedics testified that he saw various buyers hand Torres an unspecified amount of United States currency in exchange for light blue glassine packets.

At approximately 1:50 p.m. Bedics observed Appellant and two other individuals approach Torres. The men engaged in a brief conversation whereupon Torres removed a small bundle of light blue packets from his jacket pocket. He proceeded to peel off one packet and handed it to Appellant, who in turn, gave him an unspecified amount of money. The same process occurred with one of the other men who was with Appellant. The three men then got into a blue Mercury Sable and attempted to leave the scene. Bedics radioed the other members of the team for assistance in apprehending Appellant. However, all other members were busy stopping prior buyers. Therefore, Bedics and Mower decided to follow the Mercury Sable.

Bedics told Mower of his plan to jump out of the car at the first red light. He warned Mower to keep her eyes on the suspects' hands because it is very common for them to throw the contraband out of the window or to swallow it. Upon reaching the red light, Bedics pulled in front of the Sable. Both officers jumped out of the car, displayed their badges and yelled, “police, put your hands in the air.” Bedics saw two occupants of the vehicle comply with their orders. Appellant, however, raised his hand to his mouth and placed a light blue-packet inside. In an effort to stop Appellant, Bedics dove at Appellant’s mouth and throat, ordering him to “spit [the drugs] out.” While Bedics was holding Appellant’s throat he felt him swallow. Realizing that Appellant had probably swallowed the contraband, Bedics released his hold. Mower then searched Appellant’s mouth which was empty.

Appellant seeks an arrest of judgment or new trial on the following grounds: (1) there was insufficient evidence to sustain the verdict; (2) the trial judge erroneously instructed the jury as to the Commonwealth’s burden of proof; and (3) the trial judge erroneously instructed the jury that the Commonwealth did not have to prove that the evidence swallowed was heroin when the information specifically charged Appellant with destroying a packet of heroin. We will address each issue in the order it appears above.

Appellant’s first allegation is that the evidence is insufficient to sustain the verdict. Under the umbrella of sufficiency, Appellant raises three sub-issues. The first is that the Commonwealth failed to prove beyond a reasonable doubt that Appellant swallowed a packet of heroin. To support his position, Appellant states that-both Bedics and Mower testified that they could not positively identify the substance swallowed as heroin: The second sub-issue is that he did not “conceal” evidence because when he placed it in his mouth, he did so in the presence of the investigators. The third is that he could not have “destroyed” the evidence because it could have been retrieved via a stomach pump or forced bowel movement.

When reviewing a challenge to the sufficiency of the evidence, we must determine whether the evidence was sufficient to enable the trier of fact to find every element of the crime charged beyond a reasonable doubt, viewing all evidence in a light most favorable to the Commonwealth. Commonwealth, v. Zimmick, 539 Pa. 548, 554, 653 A.2d 1217, 1220 (1995) (citations omitted). This standard applies equally to cases in which the evidence is circumstantial rather than direct as long as the evidence as a whole links the accused to the crime beyond a reasonable doubt. Commonwealth v. Hardcastle, 519 Pa. 236, 245, 546 A.2d 1101, 1105 (1988), cert. den., 110 S.Ct. 1169 (1990). Moreover, the facts and circumstances established by the Commonwealth do not have to be absolutely incompatible with the accused’s innocence, but the question of any doubt is for the factfinder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the totality of the circumstances. Commonwealth v. Govens, 429 Pa.Super. 464, 488, 632 A.2d 1316, 1328 (1993), alloc. den., 539 Pa. 675, 652 A.2d 1321 (1994) (citations omitted).

To prove tampering with evidence, the Commonwealth must show that an individual, believing that an official proceeding or investigation was pending, altered, destroyed, concealed or removed “any record, document or thing with the intent to impair its verity or availability in [the] proceeding or investigation.” 18 Pa.C.S.A. § 4910(1). Thus, in this case, the Commonwealth must have demonstrated (1) that Appellant knew Bedics and Mower were involved in an official investigation when they stopped the vehicle; (2) that by placing the packet in his mouth he was concealing something with the intent to (3) impair the investigators’ ability to retrieve it. Id.; Commonwealth v. Eckert, 401 Pa.Super. 179, 180-183, 584 A.2d 1038, 1039-1040 (1991).

Upon viewing the evidence in this light, we find that it sufficiently supports the verdict. To address Appellant’s first sub-issue, we note that his reliance on the fact that the investigators could not positively identify the packet as heroin is misplaced. Appellant was not charged with possession of heroin; therefore, proof beyond a reasonable doubt of what was inside the light blue packet is not a requisite element. The Commonwealth need only establish that Appellant knew an investigation was under way and that he intended to keep the packet out of the possession of the police. We find that based on the evidence presented, the jury could have reasonably inferred these facts. The officers jumped out of a vehicle, displayed their badges, and yelled “police, put your hands in the air.” Appellant’s reaction, by raising his hands to his mouth and placing the light blue glassine packet inside, readily confirms his awareness that the police were involved in some sort of investigation. In addition, it was not unreasonable for thé jury to infer that Appellant’s intent was to hide the packet from the investigators, thus impairing their ability to seize it.

We find no merit in Appellant’s second and third sub-issues. It is absurd to suggest, as Appellant does, that he did not attempt to “conceal” the packet simply because the act of concealment was done in the presence of the officers. The fact that the officers saw Appellant place the packet in his mouth does not detract from the undisputable fact that he intended to impair the officers’ access to the packet. Similarly, the fact that the evidence was not totally “destroyed” per se because it could have been pumped out of or forcefully expelled from Appellant’s body does not detract from the overt criminal act for which Appellant was charged. Section 4910(1) does not require proof that the evidence was concealed outside the presence of the police or that it was completely destroyed. It merely requires a showing that Appellant knowingly intended to conceal, remove, or destroy evidence during a police investigation. .

In light of the above, we conclude that the evidence sufficiently supports each of the requisite elements of the crime beyond a reasonable doubt. Thus, we reject Appellant’s first argument.

Appellant’s second argument is that the trial judge erred in instructing the jury that the Commonwealth only had to prove that Appellant attempted to conceal the evidence when the information specifically stated that he destroyed it.

We note that the purpose of a bill of information or indictment is to inform the defendant of the charges against him and to protect him against further prosecution for the same crime. Commonwealth v. Rolinski, 267 Pa.Super. 199, 202-203, 406 A.2d 763, 764 (1979). In addition, the Rules of Criminal Procedure indicate that the issues at trial are to be defined by the information. Pa.R.Crim.P. 225(d). However, pursuant to Pennsylvania law, an information is not to be read in an overly technical form. Thus, we will arrest judgment only when an error misleads a defendant as to the charges against him, precludes him from anticipating the Commonwealth’s proof, or impairs a substantial right. Commonwealth v. McIntosh, 328 Pa.Super. 255, 266, 476 A.2d 1316, 1321 (1984) (citations omitted). Because the information at issue properly informs Appellant of the charge against him and of the Commonwealth’s burden of proof, we reject his second argument as well.

The information consisted of the following:

[Appellant] did, believing that an official investigation is pending or about to be instituted, alter, destroy, remove or conceal any document or thing with the intent to impair its verity or availability in such proceeding or investigation, to wit: [Appellant] was seen by Officer Bedics purchasing a packet of heroin and when [Appellant] was approached by officers he took the packet of heroin and consumed it by swallowing it, thus destroying the evidence which would have been used in an official prosecution.

Information, 6/4/94, p. 1.

After reading the above information to the jury, the judge further instructed the jury as follows:

A person commits a criminal act if believing that an official proceeding or investigation is pending or about to be instituted alters, destroys, conceals or removes any record, document or thing with the intent to impair its. verity or availability in such proceeding in an investigation. That’s the law of the Commonwealth.
Now, in order to find [Appellant] guilty of that crime, the Commonwealth has to prove three things. First, that [Appellant] believed that an official investigation was about to be instituted____
Number two, you then have to be convinced that [Appellant] altered, destroyed, concealed or removed any evidence as was alleged by the Commonwealth so that you have to find that he altered, destroyed, concealed or removed from the Commonwealth any evidence that was available to them.
Third, that [Appellant] did so with the intent to impair its availability to the Commonwealth. Those are the three factors that the Commonwealth had to convince you beyond a reasonable doubt occurred and were done by this defendant on that particular day.
And let me tell you that in this case and under the law, the Commonwealth need only show that there was concealment. They don’t have to show all of the alteration or destruction or removal. If they show any one of those, that is sufficient. So if they show concealment, that is sufficient for you to consider that testimony and as one of the elements of the crime.

N.T., 10/13/94, pp. 40-42.

A simple review of the information reveals that the Commonwealth set forth all of the possible acts precluded by section 4910, including concealment. Thus, the trial judge adequately appraised the jury of the crime for which Appellant was charged. He further informed the jury that the Commonwealth need not prove that Appellant altered and concealed and destroyed evidence of a pending investigation. This instruction was not erroneous, as Appellant would like this Court to find. Section 4910 states that an individual “tampers with physical evidence” when he “alters, destroys, conceals or removes” such evidence. Thus, as the trial judge correctly stated, the Commonwealth need only show one of the specified acts prohibited by section 4910 to satisfy the second element of the crime.

Appellant’s third argument is that the trial court erred in instructing the jury that the Commonwealth did not have to prove that the packet Appellant swallowed when approached by the police contained heroin when it was specifically stated in the information. We have already stated that Appellant was not charged with possession of a controlled substance. Therefore, the Commonwealth did not have to prove beyond a reasonable doubt that it was heroin in the double sealed packet. The content of the packet is irrelevant to the question of whether Appellant knew that the police were investigating criminal activity and, in an effort to impair their ability to seize the packet, placed it in his mouth and swallowed it. Moreover, we have also found that the information adequately appraised Appellant of the charge against him. Thus, the validity of the information is not affected merely because it described the packet swallowed by Appellant as “heroin.”

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 4910(1).

      . Appellant's post-verdict motions were denied by operation of law because they were not disposed of within the 120-day period provided by Pa.R.Crim.P. 1410(B)(3)(a), 42 Pa.C.S.A.

      . Bedics slated that through his experience he has become familiar with the packaging of heroin. He indicated that it is very common for the drugs to be double sealed in small blue glassine packets such as those seen on April 7, 1994.

      . Appellant also summarily alleges that the verdict was against the weight of the evidence. Such an allegation concedes that there is sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict is against the weight of the evidence. Commonwealth v. Taylor, 324 Pa.Super. 420, 425, 471 A.2d 1228, 1230 (1984). Our standard of review is not whether we would have decided the case differently, but rather, whether the verdict is so contrary to the evidence as to compel a new trial. Commonwealth v. La, 433 Pa.Super. 432, 461, 640 A.2d 1336, 1351 (1994), alloc, den., 540 Pa. 597, 655 A.2d 986. To prevail, Appellant must show that the verdict was based upon tenuous and vague evidence such that it shocks one’s sense of justice. Commonwealth v. Murray, 408 Pa.Super. 435, 438, 597 A.2d 111, 113 (1991), alloc. den., 529 Pa. 668, 605 A.2d 333 (1992).

        Applying this standard to our factual situation, we conclude that the verdict is not against the weight of the evidence. Appellant’s verdict does not shock this Court’s sense of justice because the evidence and all reasonable inferences derived therefrom establishes guilt beyond a reasonable doubt.

      . We also note that Appellant was clearly informed that he was charged with violating 18 Pa.C.S.A. section 4910 which unambiguously states that one cannot alter, destroy, conceal or remove evidence. Thus, Appellant was not prejudiced or misled as to the charges against him or to the burden of proof the Commonwealth would have to satisfy. McIntosh, 476 A.2d at 1321.


author: CIRILLO, Judge:

text:
    669 A.2d 1008
    COMMONWEALTH of Pennsylvania v. Ronald SMITH, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 10, 1995.
    Filed Jan. 10, 1996.

      John W. Packel, Assistant Public Defender, Philadelphia, for appellant.
    Kathy L. Echternach, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CIRILLO, POPOVICH and OLSZEWSKI, JJ.
   CIRILLO, Judge:

Ronald Smith appeals from an order, entered by the Court of Common Pleas of Philadelphia County, revoking his parole and probation and imposing a term of total confinement. We affirm.

On January 9, 1992, defendant Ronald Smith entered a negotiated guilty plea to two counts of robbery. The negotiated sentence imposed imprisonment of four to twenty-three months, on each bill, to be served concurrently. Additionally, the court ordered the defendant to serve consecutive one year probation terms on each bill.

On November 16,1993, Smith was arrested, charged, and convicted of numerous other felonies. At a subsequent probation hearing, Smith’s 1992 probation was revoked and he was sentenced to two concurrent terms of imprisonment of two to five years on the original 1992 bills, to run consecutively to the sentence he was serving for the 1993 convictions. After Smith’s petition for modification of sentence was denied, he appealed to this court. He raises the following issue for our review:

Whether appellant’s sentence of two to five years following probation revocation is illegal as it exceeded the maximum period of probation originally imposed?

The scope of review following revocation of probation is limited to the validity of the proceedings and the legality of the sentence. Commonwealth v. Gilmore, 465 Pa. 202, 348 A.2d 425 (1975). Additionally, the challenge to the validity of sentence imposed pursuant to a plea bargain goes to the legality of sentence and, as such, is a non-waivable matter. Commonwealth v. Daniels, 440 Pa.Super. 615, 656 A.2d 539 (1995).

Smith claims that it was procedurally incorrect for the trial court to impose a sentence upon him which directly contravenes binding case law precedent. Specifically, appellant asserts that this court’s decision in Commonwealth v. Anderson, 434 Pa.Super. 309, 643 A.2d 109 (1994), mandates that a sentence of imprisonment which is imposed after revocation of a defendant’s probation, and which exceeds the length of the original probationary period, is illegal. Smith’s reliance on Anderson, however, is misplaced.

In Commonwealth v. Anderson, 434 Pa.Super. 309, 643 A.2d 109 (1994), the defendant pled guilty to two counts of burglary and was sentenced to 11^-23 months in prison, to be followed by a five year probationary term. Two months later, the defendant, charged with theft and receiving stolen property, entered into a negotiated plea bargain with the court. The court accepted this agreement and sentenced the defendant to five years probation, with the second sentence for the theft and stolen property convictions to run concurrently with the defendant’s prior burglary sentence. The court subsequently revoked defendant’s probation, and, at a resentencing hearing, the court sentenced her to two to five years incarceration for the theft and stolen property convictions. These sentences were to be served consecutively — for a total four to nine year term of confinement.

On appeal, the defendant claimed that the sentencing court erred by imposing the consecutive sentences at her revocation of probation hearing. Determining that the trial court’s judgment of sentence should be vacated and the case remanded for resentencing, this court’s holding particularly stressed the binding nature of a negotiated plea. This court found that because the trial court sentenced the defendant to serve her sentences concurrently, pursuant to a negotiated plea bargain, the sentencing court’s subsequent imposition of a consecutive sentence on the defendant was invalid.

The holding in Anderson, however, is not relevant to the case at hand. Although the trial court did enter into a negotiated plea bargain with Smith at his original sentencing proceeding, the negotiated agreement was never changed by the trial court when it resentenced Smith for violating his probation. In fact, the sentence following Smith’s revocation of probation was consistent with that of his plea for the first robbery convictions. At Smith’s original hearing, the court and Smith agreed that his sentences would run concurrently. After his probation revocation, the court entered a sentence which also ran concurrently on the original robbery convictions.

There, exists an additional reason why the instant case is not governed by the dictates of Anderson. Specifically, Anderson uses the following language, found in Commonwealth v. Harrison, 264 Pa.Super. 62, 398 A.2d 1057 (1979), to support its finding that the sentence imposed was illegal:

[A]ny sentence imposed after probation revocation must not exceed the maximum sentence originally imposed.

Id. at 66 n. 2, 398 A.2d at 1059 n. 2. This premise, however, was intended to be applied strictly to cases where a trial court resentences a defendant after having first imposed a sentence and then suspended the sentence pending a period of probation. By contrast, in the instant case Smith’s sentence consisted of a term of total confinement followed by a term of probation. The importance of the distinction between a suspended and non-suspended sentence, and the appropriate limits placed upon a court when it must resentence a defendant after probation revocation, was recognized in Commonwealth v. Raynes, 349 Pa.Super. 314, 503 A.2d 17 (1986).

In Raynes, the court stated that when a sentence is suspended, pending a period of probation, the court is, in effect, choosing to defer sentencing, and is giving the defendant a chance to prove himself on probation. Because a court voluntarily chooses to be more lenient when it suspends a defendant’s sentence, when the same defendant violates probation and must be resentenced, the court cannot sentence the defendant more strictly than the sentence originally imposed. Id.; see also Commonwealth v. Cole, 222 Pa.Super. 229, 294 A.2d 824 (1972) (when court suspends imposition of sentence and places the defendant on probation, the court is not limited to resentencing defendant, upon revocation of probation, by a term of probation; however any term of imprisonment, upon resentencing, may not exceed the maximum term of the defendant’s original sentence); Commonwealth v. Johnson, 269 Pa.Super. 122, 409 A.2d 94 (1979) (where original sentence was imposed and then suspended and replaced by lesser sentence, reimposition of original sentence, upon revocation of probation, was a second punishment and constituted double jeopardy); Commonwealth v. Silverman, 442 Pa. 211, 275 A.2d 308 (1971) (modified sentence which was later increased upon resentencing of defendant, who had violated his probation, constituted double jeopardy and was constitutionally impermissible). Because the sentencing judge did not suspend Smith’s original sentence pending a period of probation, Raynes, supra, Smith’s sentence was not of the type which would invoke double jeopardy concerns. Johnson, supra.

The imposition of sentence following revocation of probation is vested within the sound discretion of the trial court, which, absent an abuse of that discretion, will not be disturbed on appeal. Commonwealth v. Bell, 269 Pa.Super. 559, 410 A.2d 843 (1979). Additionally, it is well-settled that upon revocation of probation, a court possesses the same sentencing alternatives that it had at the time of the initial sentencing. Commonwealth v. Pierce, 497 Pa. 437, 441 A.2d 1218 (1982). We find that the trial judge did not abuse his discretion in sentencing Smith to a term of two to five years incarceration following his probation revocation.

The sentencing judge noted that Smith’s original conviction carried a maximum of twenty years imprisonment and a $50,000.00 fine. Accordingly, the court had the authority to sentence Smith to a maximum of twenty years based on the two original robbery convictions in 1992. Pierce, 497 Pa. at 440, 441 A.2d at 1219 (appellant originally sentenced to a term of lijé to 23 months with an eight year term of probation, who subsequently violated his conditions of probation, was not illegally sentenced when trial court sentenced defendant to a term of total confinement of 4 to 8 years upon revocation of his probation, in light of the fact that the defendant was placed in the same position that he was in at the time of his original conviction, and the sentencing court had the authority to sentence defendant to a term total confinement up to 10 to 20 years, based on the minimum and maximum terms of imprisonment for robbery under the Criminal Code).

Additionally, the total time of confinement, after Smith was resentenced at his probation revocation hearing, was well below the statutory maximum. See Commonwealth v. Fleeger, 292 Pa.Super. 310, 437 A.2d 60 (1981) (probation violation sentence of 18 to 36 months imprisonment was not illegal, where such sentence was not imposed after a term of imprisonment was vacated and replaced by probationary term, but, was imposed in conjunction with a term of imprisonment, and probation violation sentence did not exceed the maximum sentence to be imposed for robbery conviction when combined with the time that the defendant had already served). Smith’s original sentence of imprisonment, for the 1992 robberies, was 4-23 months. The total time of confinement imposed by the court in 1993 for these same bills, following probation revocation, was 2-5 years. Therefore, the maximum amount of time which Smith could have possibly spent imprisoned was 83 months — 23 months plus 5 years. This amount is just under seven years — well below the statutory maximum of twenty years. Fleeger, supra.

Accordingly, because we find that Smith’s sentence was neither an abuse of the trial court’s discretion, Bell, supra, nor illegal, we affirm the trial court’s order. Pierce, supra.

Order affirmed.

      . Smith was subsequently sentenced, on these convictions, to a term of four to fifteen years imprisonment.

      . Because the commission of a new crime violates an implied condition of probation and suggests that the defendant is a poor probation risk, Commonwealth v. Miller, 358 Pa.Super. 219, 516 A.2d 1263 (1986), the sentencing court was well within its authority to revoke Smith’s probation after he committed numerous crimes while on probation — robbery, criminal conspiracy, recklessly endangering another person, terroristic threats, simple assault and two counts of theft. See Miller, 358 Pa.Super. at 223-24, 516 A.2d at 1265-66 (defendant’s commission of new offenses of assault, recklessly endangering another person, possession of an instrument of crime and prostitution justified court’s revocation of probation); see also Commonwealth v. Spinozzi, 236 Pa.Super. 32, 345 A.2d 181 (1975) (probation revocation hearings are flexible; material not considered by the court is admissible at such hearings; proof required at revocation is less than that required to sustain a criminal conviction). Because Smith was arrested, charged and ultimately convicted of multiple felonies, we are convinced that the basis for revoking his probation was sufficient. Spinozzi, supra.

      . The Commonwealth relies on the holding of the consolidated appeals of Commonwealth v. Byrd, 444 Pa.Super. 86, 663 A.2d 229, and Commonwealth v. Bender, 444 Pa.Super. 86, 663 A.2d 229, to refute the applicability of Anderson. We note that this reliance is also misplaced. See Commonwealth v. Byrd, 444 Pa.Super. 86, 663 A.2d 229, and Commonwealth v. Bender, 444 Pa.Super. 86, 663 A.2d 229 (when the defendant has neither entered his plea pursuant to a negotiated plea agreement, nor has the sentencing court's discretion been otherwise limited, a trial court can properly sentence a defendant, following revocation of probation, for a period of incarceration which was more than a previously imposed period of probation).
      In the case at hand, Smith did enter his plea pursuant to a negotiated agreement with the court. Additionally, neither Byrd nor Bender addresses the'legality of the revocation of probation sentence in relation to the original sentence imposed on Smith — the real issue which should be decided in this appeal, as opposed to Smith’s issue as framed and stated on p. 2.

      . Although this court notes that the Anderson court failed to state the limited application of this quoted language from Harrison, we agree with the decision ultimately reached in Commonwealth v. Anderson— namely, that the defendant’s sentence after revocation of his probation was illegal. The.concurrent sentence imposed pursuant to the negotiated plea bargain was improperly contravened when the sentencing court, following defendant’s violation of probation, imposed a consecutive sentence.