No. 1033 Pittsburgh, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Westmoreland County, at No. 747 April Term, 1979.
Bruce A. Carsia, Pittsburgh, for appellant.
Albert M. Nichols, District Attorney, Greensburg, for Commonwealth, appellee.
Cercone, President Judge, and Brosky and Hoffman, JJ.
[ 308 Pa. Super. Page 484]
Appellant, John Spencer, was tried with a co-defendant before a judge and jury on two violations of the Controlled Substance, Drug, Device and Cosmetic Act and Conspiracy.*fn1
[ 308 Pa. Super. Page 485]
He was found guilty on all counts. Post-trial motions were filed and denied and appellant was sentenced to a term of imprisonment from eleven and one-half to twenty-three months with sentence suspended on the conspiracy charge. This is an appeal from the judgments of sentence.
The evidence presented at trial established that on October 12, 1978, appellant, in cooperation with one Wayne R. Kapalka, sold approximately eight grams of seven per cent cocaine to undercover Pennsylvania State Trooper Robert Gallagher. Instrumental in the case was the participation of an informant, Alexis Bailey, who testified that she directed and accompanied the trooper to appellant's home where the drug purchase occurred.
Appellant argues that his conviction should be reversed because the information filed against him was rubber-stamped with the name of the District Attorney of Westmoreland County and initialed by one of his assistants.*fn2 Appellant asserts that this manner of approving an Information renders it void ab initio because it does not ensure that the District Attorney made a "reasoned evaluation of the advisability of instituting a criminal trial" prior to the filing of the Information, citing Commonwealth v. Belcher, 258 Pa. Superior Ct. 153, 392 A.2d 730 (1978). In Belcher, this court held a District Attorney's failure to sign an information rendered it void because such failure was in derogation of Pa.R.Crim.P. 225(b) which requires the signature of the District Attorney on every information in order to guarantee its authenticity and reliability. Appellant in this case did not file a pre-trial motion to quash the information
[ 308 Pa. Super. Page 486]
based on this defect. Nevertheless, in reliance on Belcher, he urges reversal even without such a motion.
Recently, our court reviewed the issue of whether failure of a District Attorney to comply with the signature requirement of Pa.R.Crim.P. 225 rendered the information void or voidable upon proper filing of a pre-trial motion to quash. In the en banc decision of Commonwealth v. Veneri and Thomas, J. 2396 & 2397/81, (1982), 306 Pa. Superior Ct. 396, 452 A.2d 784; this Court held that a defendant's failure to file such a pre-trial motion constitutes a waiver of his right to assert in any subsequent proceeding the impropriety in the use of a rubber stamp facsimile of the signature of the District Attorney. Pa.R.Crim.P. 306(e). In deciding that the District Attorney's signature requirement on the information of Pa.R.Crim.P. 225(b) is directory only and that its absence renders an information merely voidable and curable by amendment if properly raised in a pre-trial motion to quash, this Court specifically overruled ...