Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

COMMONWEALTH PENNSYLVANIA v. EVERETT E. SHIREY (09/07/84)

filed: September 7, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
EVERETT E. SHIREY, APPELLANT (THREE CASES)



No. 1476 Philadelphia 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Potter County, Criminal, at Nos. 28 and 30 of 1980. No. 2475 Philadelphia 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Potter County, Criminal, at Nos. 29 and 31 of 1980. No. 2476 Philadelphia 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Potter County, Criminal, at No. 44 of 1980.

COUNSEL

Dante G. Bertani, Public Defender, Greensburg, for appellant.

Perry S. Patterson, Deputy Attorney General, Coudersport, for Com., appellee.

Johnson, Montemuro, and Montgomery, JJ. Johnson, J., files a concurring and dissenting opinion.

Author: Montemuro

[ 333 Pa. Super. Page 99]

This matter is before the court on three consolidated appeals of Everett Shirey from judgments of sentence involving five different criminal complaints. To both comprehend and compartmentalize these various appeals, a thorough understanding of the procedural history of the case is required.

On January 26, 1980, the appellant was arrested on charges under four separate criminal actions docketed in Potter County. These four actions were as follows: (1) at No. 28 of 1980, appellant was charged with indecent assault,*fn1 indecent exposure,*fn2 and corruption of a minor,*fn3 said charges pertaining to appellant's alleged conduct towards Michelle Renee Marshall, age nine years; (2) at No. 29 of 1980, appellant was charged with indecent assault and corruption of a minor, said charges pertaining to appellant's alleged conduct towards Bobbi Jo Marshall, age eleven years; (3) at No. 30 of 1980, appellant was charged with indecent assault, indecent exposure, and corruption of a minor, said charges pertaining to appellant's alleged conduct towards Joy Michelle Paucke, age eight years; and (4)

[ 333 Pa. Super. Page 100]

    at No. 31 of 1980, appellant was charged with indecent assault and corruption of a minor, said charges pertaining to appellant's alleged conduct towards Julie Lynn Marshall, age thirteen years. A preliminary hearing on these four criminal complaints was held on February 8, 1980, and appellant was bound over on all the charges.

On February 13, 1980, the appellant was arrested on a fifth set of charges. At No. 44 of 1980, appellant was charged with statutory rape,*fn4 indecent assault, indecent exposure, and corruption of a minor, said charges pertaining to appellant's alleged conduct towards Pamela Sue McMillan, age less than fourteen years. A preliminary hearing on No. 44 was held on February 19, 1980, and a prima facie case was found to exist on all the charges.

The Commonwealth presented motions to consolidate No. 28 with No. 30, and No. 29 with No. 31, for the purpose of trial. The appellant objected to consolidation and argued in the alternative that Nos. 28, 29, 30, and 31 be combined in one trial. The lower court granted the consolidation motions as requested by the Commonwealth.

Trial was held on Nos. 28 and 30 on May 15 and 16, 1980. The jury was unable to reach a verdict, and the lower court declared a mistrial on May 16, 1980. Trial of these actions was rescheduled.

On July 10 and 11, 1980, trial was held on Nos. 29 and 31. The jury returned a verdict of guilty on each of the two corruption of minors charges. After denial of appellant's motions for a new trial and in arrest of judgment, the lower court imposed sentence. Appellant has filed a timely appeal from this judgment of sentence.

On July 16 and 17, 1980, trial was held on No. 44. A verdict of guilty was rendered on three of the four charges: statutory rape, indecent assault, and corruption of a minor. The appellant's post trial motions were denied and sentence was imposed. Appellant has appealed from this judgment of sentence.

[ 333 Pa. Super. Page 101]

On September 8, 1980, jury selection was held for the retrial of Nos. 28 and 30. Appellant's counsel was not present at that proceeding because of a commitment in another case, and appellant's motion to continue the jury selection was denied. The jury was chosen with appellant acting pro se.

On October 22 and 23, 1980, retrial was held on Nos. 28 and 30. A verdict was reached by the jury finding appellant guilty on each of the two indecent exposure charges, as well as each of the two corruption of minor charges. Motions for a new trial and in arrest of judgment were denied and sentence was imposed. A timely appeal was filed from the judgment of sentence.

Before us, therefore, are appeals from: the judgment of sentence on Nos. 28 and 30, the judgment of sentence on Nos. 29 and 31, and the judgment of sentence on No. 44. While several of the issues raised in these three appeals overlap, each appeal is unique. We proceed, therefore, to examine each appeal individually.

I. APPEAL FROM NOS. 28 AND 30.

Appellant raises six issues as well as several sub-issues in this appeal. Those general issues concern: (1) selection of the jury in the absence of appellant's counsel, (2) selection of the jury six weeks prior to the trial, (3) alleged defective nature of the informations, (4) failure to consolidate all the offenses, (5) characterization of certain materials as "dirty" and "obscene", and (6) instructions to the jury. While resolution of the first issue requires the granting of a new trial, we find that issues (2) through (5) must still be addressed as they will undoubtedly recur upon retrial. Accordingly, we consider these issues seriatim.

1. Jury Selection in the Absence of Counsel.

Appellant argues that his fundamental right to counsel under the United States Constitution was violated by the trial court's requirement that he select the jury without the assistance of counsel. Selection of the jury was scheduled for September 8, 1980. During the week prior to that date,

[ 333 Pa. Super. Page 102]

    appellant's counsel, Dante Bertani, communicated with the trial judge by phone and indicated that he would be trying a murder case in another county on that date. Bertani stated that he would contact John Duvall, a local Coudersport attorney, and request that he represent appellant during jury selection.

On September 8, 1980, Mr. Duvall appeared with appellant. Duvall reported that he was not there to represent the appellant but was there only to object to selection of the jury in Bertani's absence.*fn5 Thereupon, Duvall "withdrew", and the trial judge held a conference with the assistant district attorney and the appellant. The following exchange took place:

THE COURT: . . . . we will no[w] go in and draw the jury. Do you understand how to draw the jury?

MR. SHIREY: Might I now make that formal appeal to be postponed?

THE COURT: It is on the Record, but we are going to draw the jury today, none the less.

MR. SHIREY: I will do my best.

THE COURT: You will not be waiving your objection to drawing the jury today by virtue of doing so. But we are going to draw a jury today. That's definite and that's it. But you are not waiving your right to legally object.

MR. SHIREY: I understand.

N.T. September 8, 1980, at 6-7. Upon return to the court-room, the trial judge conducted the voir dire examination,*fn6 and then the assistant district attorney and the appellant exercised their peremptory challenges. The members of the jury were announced and court adjourned.

Before the commencement of trial on October 22, 1980, Bertani took an exception to the entire jury because of its

[ 333 Pa. Super. Page 103]

    selection by appellant without assistance of counsel. The trial judge responded that the court had adjusted its calendar to accommodate Bertani's schedule on many occasions throughout the various criminal proceedings against appellant and that the court's interest in regulating its calendar outweighed counsel's availability problems. In its opinion denying appellant's post trial motions, the lower court employed a balancing test with the court's need to conduct its business with dispatch on one hand, and a criminal defendant's need to be afforded due process on the other. The lower court then determined that since it was not notified of the conflict at the earliest possible date, and since counsel had already been granted numerous continuances and changes of scheduling, the balance fell against the appellant's due process concerns.

The Sixth Amendment to the United States Constitution provides that "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." The right to counsel applies to the states via the due process clause of the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The right inheres in all criminal prosecutions where a defendant's loss of liberty is at stake, Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); and specifically attaches at all "critical stages" of the proceedings against the accused, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The Sixth Amendment right to counsel is a fundamental right and is essential to a fair trial. Gideon v. Wainwright, supra.

The issue presented here is whether the process of jury selection constitutes a "critical stage" of the prosecution during which appellant was entitled to the assistance of counsel. While other states have answered this question in the affirmative, Eason v. State, Tex.Cr.App., 563 S.W.2d 945 (1978); People v. Locklar, 84 Cal.App.3d 224, 148 Cal.Rptr. 322 (1978); there is no binding precedent in this Commonwealth to direct our resolution of this question.

[ 333 Pa. Super. Page 104]

A "critical stage" of the prosecution has been defined as "any stage of the prosecution, formal or informal, in or out of court, where counsel's absence might derogate from the accused's right to a fair trial." United States v. Wade, supra, 388 U.S. at 226, 87 S.Ct. at 1932. The thrust of the right to counsel is the entrustment of the right to a fair trial. Thus, counsel's presence at "critical stages" of the proceedings is mandated because "counsel's legal training and expertise may then be employed on behalf of the accused to observe, discover and prevent possible unfairness or irregularity in . . . procedures which may later irreparably prevent a basically fair determination of guilt or innocence." United States ex rel. Stukes v. Shovlin, 329 F.Supp. 911, 913 (E.D.Pa. 1971), aff'd., 464 F.2d 1211 (3d Cir. 1972). We are required, therefore, to scrutinize the designated proceeding to determine whether the presence of counsel is necessary to preserve an accused's basic right to a fair trial. This inquiry calls upon us to analyze whether potential substantial prejudice to an accused's rights inheres in the particular proceeding and whether counsel would have the ability to help avoid that prejudice. United States v. Wade, supra.

The right to a fair trial requires a fair tribunal. In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955). The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to be tried "by an impartial jury", and this guarantee applies to the states through the due process clause. See Commonwealth v. Brown, 231 Pa. Super. 431, 332 A.2d 828 (1974). Voir dire has been described as a "crucial stage" in a criminal proceeding, Commonwealth v. Christian, 480 Pa. 131, 135, 389 A.2d 545, 547 (1978);*fn7 since its purpose is to secure a "competent, fair, impartial and unprejudiced jury." Commonwealth v. Futch, 469 Pa. 422, 426, 366 A.2d 246, 248 (1976). It is beyond doubt, therefore, that the potential

[ 333 Pa. Super. Page 105]

    for substantial prejudice is intrinsic to the jury selection process.

The responsibility of obtaining an impartial jury must be shared by the trial court and respective counsel. Commonwealth v. Christian, supra. In pursuit of this goal, prospective jurors are examined and counsel are afforded an opportunity to determine juror qualifications as well as establish a basis for the effective exercise of peremptory challenges. Id. A litigant has the right to probe into a prospective juror's bias or any other subject which bears on the impartiality of a prospective juror. Commonwealth v. Futch, supra. Upon such an examination, a challenge for cause may be voiced and a juror may be rejected on a narrowly specified, provable, and legally cognizable basis of partiality. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Peremptory challenges play a necessary part in obtaining an impartial jury, in that their very availability "allows counsel to ascertain the possibility of bias through probing questions on the voir dire and facilities the exercise of challenges for cause by removing the fear of incurring a juror's hostility through examination and challenge for cause." Id. at 219-20, 85 S.Ct. at 835.

During the process of jury selection, important rights must be exercised or they are forever waived. An objection to a juror which constitutes good cause for challenge is waived if not made before the juror is sworn. Commonwealth v. Aljoe, 420 Pa. 198, 216 A.2d 50 (1966). The failure to elicit information which would have been available by questioning results in a waiver of the disqualification. Commonwealth v. Sydlosky, 305 Pa. 406, 158 A. 154 (1931).

Counsel, therefore, plays an active role in the jury selection process by observing, uncovering, and preventing unfairness. Through his legal training and expertise, counsel has the ability to help avoid the grave possibility of

[ 333 Pa. Super. Page 106]

    prejudice inherent in the jury selection process.*fn8 Thus, we hold that jury selection is a "critical stage" of the prosecution against an accused which calls for the assistance of counsel. The denial of appellant's constitutional right to counsel at this critical stage constitutes error.*fn9

Our inquiry does not end here, however, as we must now determine the appropriate remedy for this constitutional error. "Cases involving Sixth Amendment deprivations are subject to the general rule that remedies should be tailored to the injury suffered from the constitutional violation . . . ." United States v. Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 668, 66 L.Ed.2d 564 (1981). The case law has reflected this approach in that the appropriate remedy for a particular violation of the right to counsel may be either: suppression of evidence obtained from an accused in the absence of his counsel, id.; reversal and remand for a new

[ 333 Pa. Super. Page 107]

    trial upon a showing that such evidence admitted at trial was "harmful", id.; denial of a new trial and affirmance of a conviction where no "harm" was demonstrated, id.; and automatic reversal and remand for a new trial in some instances without the need to show "harm," Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); Gideon v. Wainwright, supra; Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

We find that automatic reversal and remand for a new trial is required. First of all, the suppression option is obviously not applicable here. Secondly, the remedies based on scrutiny of whether the error was "harmless" put a burden on the beneficiary of the error to prove beyond a reasonable doubt that the error did not affect the jury's verdict. Chapman v. California, supra; Commonwealth v. Laws, 474 Pa. 318, 378 A.2d 812 (1977). The constitutional error here, however, affects the jury itself and not merely whether their verdict could have been improperly influenced. While improper influence can be isolated, and its prejudicial impact considered in relation to other aspects of the trial, the degree of prejudice derived from jury selection in the absence of counsel can never be known. Thus, we cannot indulge in nice calculations as to the amount of prejudice arising from the denial of counsel at this critical stage of the prosecution, and so this constitutional violation mandates automatic reversal.

Finally, the Commonwealth argues that, even recognizing that appellant had a right to counsel during the jury selection process, appellant waived this Sixth Amendment right. This contention is absurd. An accused may waive the right to assistance of counsel, although courts employ every reasonable presumption against waiver of fundamental constitutional rights. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). We need not engage in presumptions here, however, since appellant explicitly

[ 333 Pa. Super. Page 108]

    requested that jury selection be postponed so that he could have the assistance of his counsel, and the trial judge just as explicitly advised appellant that his objection was on the record and he would not be waiving that objection by participating in the drawing of the jury. N.T. September 8, 1980, at 6-7. Appellant's subsequent participation in the jury selection process did not effect a waiver of his right to counsel.

2. Selection of Jury Six Weeks Prior to Trial

Appellant's second contention of error concerns a practice in Potter County of selecting juries substantially in advance of trial. In this case, jury selection took place on September 8, 1980, while trial did not commence until October 22, 1980. Immediately prior to trial, the jury was sworn. The trial judge then asked the jurors whether any juror had received any information regarding the case between the time they were chosen and the present. N.T. of October 22, 1980, at 15. The trial judge asked for a show of hands in response to his question, and none of the jurors raised his hand.

Appellant asserts that since Potter County is a rural, sparsely populated county, there was considerable opportunity within the six week delay for outside influence to have reached the selected jurors. Thus, he contends that he was deprived of his due process right to a fair trial by an impartial jury:

The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.

Patterson v. State of Colorado ex rel. Attorney General, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879 (1907). Appellant does not point to any specific taint, but argues under Turner v. State of Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965); and Commonwealth v. Stewart, 449 Pa. 50, 295 A.2d 303 (1972); that the situation was so

[ 333 Pa. Super. Page 109]

    inherently prejudicial that prejudice must be presumed. We disagree.

In most cases involving claims of due process deprivations, a showing of identifiable prejudice to the accused is required. Estes v. State of Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). Nevertheless, there are times when "a procedure employed by the State involves such a probability that prejudice will result that it is deemed inherently lacking in due process." Id. at 542-43, 85 S.Ct. at 1633. Thus, in Turner v. State of Louisiana, supra, prejudice was presumed where two key witnesses for the prosecution were deputy sheriffs who doubled as jury shepherds during the trial. In Commonwealth v. Stewart, supra, prejudice was presumed where the father of a murder victim was on the same panel as the jurors who had been selected for the murder trial, and the father had been in the same room with the jurors who were hearing the case for as long as two and one-half days. In neither Turner v. State of Louisiana nor Commonwealth v. Stewart, was there any proof that any juror had been spoken to; however, prejudice was presumed to prevent the probability of unfairness.

We do not believe that a six week lapse of time between jury selection and the day of trial gives rise to a probability of unfairness requiring presumption of prejudice. This court has recently addressed this issue and held that actual prejudice must be demonstrated:

Appellant next assigns as error the failure of the court to swear the jury immediately after it was chosen. It appears that the jury members were impaneled on August 7, 1978, but were not actually sworn until August 18, 1978, the day of trial. Appellant directs us to no authority, and our research has disclosed none, requiring the jury to be sworn immediately after it is chosen. 'In the absence of statute, the time for swearing jurors in chief after they have been examined and opportunity given for challenge is within the discretion of the court.' 50 C.J.S. Juries § 294b. Before swearing the jury on

[ 333 Pa. Super. Page 110]

August 18, the court inquired whether any had become aware of facts or engaged in any discussion which would disallow them from sitting fairly and impartially. None responded, and appellant's counsel made no attempt to inquire of any other possible prejudice stemming from the delay. R.R. 24a In the absence of any actual prejudice, we do not believe the procedure followed to be improper. Compare, Commonwealth v. Bruno, 466 Pa. 245, 352 A.2d 40 (1976); Commonwealth v. Bobko, 453 Pa. 475, 309 A.2d 576 (1973). (Footnote omitted).

Commonwealth v. Darush, 279 Pa. Super. 140, 152, 420 A.2d 1071, 1077 (1980); judgment of sentence vacated and remanded for resentencing, 501 Pa. 15, 459 A.2d 727 (1983) (Superior Court's disposition of issue regarding delay in swearing of jury was approved, see 501 Pa. at 20 n. 4, 450 A.2d at 730 n. 4). Since appellant has failed to show actual prejudice, this claim of error is devoid of merit.

3. Alleged Defective Informations

Appellant's third assertion of error is that the trial court erred in denying his motion to quash the informations. Appellant alleges that the informations were infirm in that they were: (a) overly vague and unspecific as to the dates on which the alleged offenses took place, (b) incorrect in citing to a section of the crimes code which had been repealed, and (c) improperly signed by an assistant district attorney in violation of Pa.R.Crim.P. 225(b). We find no error in the trial court's denial of the motion to quash.

The standard of review in an appeal from a grant or denial of a motion to quash has been set forth by this court:

The decision to grant or deny a motion to quash is within the sound discretion of the trial judge and will be reversed on appeal only where there has been a clear abuse of discretion. See Commonwealth v. Hackney, 117 Pa. Super. 519, 522, 178 A. 417, 418 (1935); Commonwealth v. Schwartz, 56 Pa.D. & C.2d 147 (C.P.Phila. 1972). A court, moreover, "should not sustain a motion to quash . . . except in a clear case where it is convinced that harm

[ 333 Pa. Super. Page 111]

    has been done to the defendant by improper conduct that interfered with his substantial rights." Commonwealth v. O'Brien, 181 Pa. Super. 382, 397, 124 A.2d 666, 674 (1956), appeal dismissed, Commonwealth v. Laughlin, 389 Pa. 109, 132 A.2d 265 (1957), citing Commonwealth v. Brownmiller, 141 Pa. Super. 107, 116, 14 A.2d 907 (1940).

Commonwealth v. Niemetz, 282 Pa. Super. 431, 439-40, 422 A.2d 1369, 1373 (1980).

To be valid, an information must contain:

[T]he date when the offense is alleged to have been committed if the precise date is known, and the day of the week if it is an essential element of the offense charged, provided that if the precise date is not known or if the offense is a continuing one, an allegation that it was committed on or about any date within the period fixed by the statute of limitations shall be sufficient.

Pa.R.Crim.P. 225(b)(3). Herein, both informations provided that the alleged offenses occurred between June, 1979, and December, 1979, a span of seven months.

Appellant maintains that the lack of specificity of the informations violated Pa.R.Crim.P. 225(b)(3), and thereby hindered his ability to present a defense, particularly an alibi. Relying on Commonwealth v. Devlin, 460 Pa. 508, 333 A.2d 888 (1975) and Commonwealth v. Levy, 146 Pa. Super. 564, 23 A.2d 97 (1941), appellant points out that while the rule does not require absolute specificity, the date of the commission of an offense must be fixed with reasonable certainty.

This court has disposed of this identical issue in Commonwealth v. Niemetz, supra, wherein the appellant was convicted of rape, involuntary deviate sexual intercourse, indecent assault, and corruption of a minor:

The information in the instant case averred the commission of offenses "on (or about) divers [sic] dates beginning in 1972 and continuing until August, 1977." This course was adopted because the Commonwealth was unable

[ 333 Pa. Super. Page 112]

    to "state the dates on which the offenses occurred with any more specificity." Since time is not of the essence in the crimes for which appellant was charged and convicted, see Commonwealth v. Yon, 235 Pa. Super. 232, 341 A.2d 169 (1975); Commonwealth v. Rouse, 207 Pa. Super. 418, 218 A.2d 100 (1966), the pertinent allegation contained in the information appears to fit precisely Rule 225's proviso that an allegation that an offense was committed "on or about any date within the period fixed by the statute of limitations shall be sufficient" when (1) time is not of the essence and (2) a precise date is unknown . . . . Moreover, we do not believe that it would serve the ends of justice to permit a person to rape and otherwise sexually abuse his child with impunity simply because the child failed to record in a daily diary the unfortunate details of her childhood. Since the facts of the instant case preclude a definitive enumeration of events and because the record belies any assertion that the Commonwealth sought to abuse the flexibility of Rule 225, we hold that it was not an abuse of discretion to deny the motions. (Footnote omitted). (Emphasis in original).

Id. 282 Pa. Super. at 439-40, 422 A.2d at 1373. The Niemetz court was confronted with the precedent of Devlin and Levy and held that those cases were distinguishable in that neither case involved a continuing offense, and thus were more susceptible to being fixed with reasonable certainty. We agree with the reasoning of Niemetz. Since the instant cases dealt with continuing crimes against each victim, the period of time recited by the informations was sufficient.

Appellant also contends that the informations should have been quashed where he was charged with corruption of minors under 18 Pa.C.S.A. § 3125. That section had been repealed at the time the offenses were allegedly committed,*fn10 and the offense of corruption of minors had been reenacted substantially verbatim at 18 Pa.C.S.

[ 333 Pa. Super. Page 113]

§ 6301.*fn11 Immediately prior to trial, the trial judge granted the Commonwealth's motion to amend the information to reflect the proper statutory section. Appellant argues that the grant of this amendment prejudiced and inconvenienced him in the preparation of his defense, and so denied him due process.

Our rules of criminal procedure provide for the amendment of informations "when there is a defect in form, [or in] the description of the offense . . . provided the information as amended does not charge an additional or different offense." Pa.R.Crim.P. 229. The purpose of this rule is to insure that a defendant is fully apprised of the charges against him, and to avoid prejudice by prohibiting last minute additions of alleged criminal acts of which a defendant is uninformed. Commonwealth v. Lawton, 272 Pa. Super. 40, 414 A.2d 658 (1979); Commonwealth v. Stanley, 265 Pa. Super. 194, 401 A.2d 1166 (1979), aff'd., 498 Pa. 326, 446 A.2d 583 (1982). The test is whether the amended provision alleges a different set of events, or its elements or defenses are materially different from the elements or defenses to the crime originally charged. Commonwealth v. Stanley, supra.

We fail to see any prejudice at all to appellant in the allowance of this amendment. The events described, the elements, and the available defenses were identical in the original and amended informations. That the informations

[ 333 Pa. Super. Page 114]

    referred "to a specific section number of the Crimes Code is unfortunate but not fatal. The offense charged and on what statute it is founded is to be determined from the allegations in the information." Commonwealth v. Lohr, 503 Pa. 130, 136, 468 A.2d 1375, 1378 (1983). Appellant's argument is unavailing.

Lastly, appellant charges that the trial court abused its discretion in denying his motion to quash on the basis that the informations were void for failure to have been properly signed by the district attorney or his officially designated authority. Pa.R.Crim.P. 225(b), 42 Pa.C.S. § 8931(i). The informations bore the signature of assistant district attorney Charles P. Mackin, Jr. At the time Mackin signed the informations, his authority to act for the district attorney in signing informations had not been evidenced by a written designation filed with the clerk of courts, in accordance with 42 Pa.C.S. § 8931(i). Thereafter, on May 28, 1980, the appropriate designation was filed. That designation included the district attorney's ratification and confirmation of all acts previously done by Mackin in his capacity as an assistant district attorney. Retrial was held subsequently, on October 22 and 23, 1980.

The requirement of an authorized signature on a criminal information is designed to assure the authenticity of the information and to guarantee that a full inquiry has been made into the facts and circumstances of the case, and that an authorized official has made a reasoned evaluation of the propriety of initiating criminal proceedings. Commonwealth v. Emanuel, 501 Pa. 581, 462 A.2d 653 (1983). Herein, undisputed testimony was presented at the omnibus pretrial motion hearing, that on January 25, 1980, the district attorney had personally discussed and approved the filing of the original criminal complaints. N.T. May 9, 1980, at 8-13. These criminal complaints were filed the following day, January 26, 1980. Since a reasoned evaluation by the district attorney had been made initiating the criminal proceedings, we fail to see the point in quashing the informations

[ 333 Pa. Super. Page 115]

    and discharging the appellant for a violation of the technical rule imposed to achieve the selfsame goal.

In any event, the required designation of authority was filed well in advance of commencement of trial, and under this court's recent decision in Commonwealth v. Williams, 323 Pa. Super. 512, 470 A.2d 1376 (1984), this tardy filing would satisfy the requirement of Pa.R.Crim.P. 225(b). The Williams court held that, although the requisite designation of authority had not been filed prior to the filing of the information, the filing of the designation of authority in advance of the commencement of trial was sufficient. In keeping with Williams, the trial court did not err in denying appellant's motion to quash on the basis that it had been improperly signed.

4. Consolidation

Appellant's fourth assignment of error concerns the consolidation of cases Nos. 28 and 30. Upon the Commonwealth's motion, these two cases were consolidated for trial. Appellant opposed the consolidation and argues here that because of the prejudicial impact of consolidation, the lower court abused its discretion in granting the Commonwealth's request.*fn12

Where informations arise from distinct criminal episodes or transactions, consolidation is a matter within the sound discretion of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.