author: ROWLEY, Judge:

text:
    446 A.2d 286
    COMMONWEALTH of Pennsylvania v. Ronald Lamarr KASTER, Jr.
    Superior Court of Pennsylvania.
    Argued March 23, 1982.
    Filed May 28, 1982.

      Robert Dunne Kodak, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   ROWLEY, Judge:

Shortly after ten o’clock P.M. on August 4, 1979, Michael Nelson, Chief of Police of Wiconisco Township, was shot with a double-barrel 12-gauge shotgun as he sat in his parked police cruiser. As a result, Chief Nelson suffered serious and permanent, disabling injuries. He was not able to observe his assailant(s). On July 2, 1980, appellant, Ronald Kaster, was arrested and charged with criminal attempt to commit murder in connection with Chief Nelson’s shooting. Appellant was convicted, after a jury trial, and sentenced to five (5) to ten (10) years imprisonment. This direct appeal followed.

Appellant raises five issues on appeal: whether, (1) the trial court improperly admitted a letter from appellant to one, Jonathan Neidlinger, (2) the court improperly admitted a photograph of the interior of the victim’s car, taken after the shooting, (3) the court’s “ruling” as the admissibility of appellant’s prior conviction for theft by receiving was prejudicial error, (4) the court erred in denying appellant’s demurrer, and (5) the verdict rendered was against the evidence and against the weight of the evidence. We find all of appellant’s arguments to be without merit and therefore, affirm the judgment of sentence.

Appellant’s first argument concerns a letter admittedly sent by him to his friend, Jonathan Neidlinger, approximately six weeks after Chief Nelson was shot. Enclosed with the letter was a drawing, depicting Alvin Lubold, the police officer from the neighboring town of Tower City, chained and hanging by a noose in front of a burning house. Written across the top of the drawing were the words, “Nipper of Corse” (sic). “Nipper” was Officer Lubold’s nickname. The Court admitted the letter and picture as evidence of malice and ill will towards the police and also because it corroborated the testimony of Mr. Neidlinger. Neidlinger testified that prior to August 4, 1979, appellant harbored ill will towards three specific police officers in the area, Chief Nelson, Officer Lubold and Chief Williard of Williamstown, and that plans had already been devised to kill each of those officers.

As a general rule, evidence, which proves intent, plan, design, ill will or malice is relevant and admissible. Commonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861 (1960), cert. denied 365 U.S. 846, 81 S.Ct. 807, 5 L.Ed.2d 811 (1960). Appellant argues, however, that because the drawing was sent after the attack on Nelson and because it does not specifically refer to him, it is irrelevant. We disagree. Ill will or malice towards a victim can be demonstrated by establishing the state of mind of the assailant towards certain persons with respect to a particular subject. Commonwealth v. Glover, 446 Pa. 492, 286 A.2d 349 (1972). Evidence concerning a defendant’s involvement in substantially similar schemes, is admissible to show motive, intent or identity. See Commonwealth v. Hawkins, 295 Pa.Super.Ct. 429, 441 A.2d 1308 (1982). In this case, the drawing,.in addition to the testimony of Mr. Neidlinger and other witnesses, demonstrated appellant’s ill will towards an identified group of police officers and is corroborative of the testimony that there was evidence of a plan to kill each of those officers. Appellant further argues that the letter is irrelevant since it was sent after the attack on Chief Nelson. However, it has been held that evidence of a defendant’s actions both before and after a crime may be admissible to show motive and malice. Commonwealth v. Littlejohn, 433 Pa. 336, 250 A.2d 811 (1969). See also Commonwealth v. Hoffman, 263 Pa. Superior Ct. 442, 398 A.2d 658 (1979). Therefore, the letter and the picture were properly admitted both as evidence of malice and to corroborate Mr. Neidlinger’s testimony.

Appellant also argues that the admission of a color photograph showing the interior of the victim’s car was improper. The question of admissibility of photographs is within the discretion of the trial judge, whose decision will be reversed only if there has been an abuse of discretion. Commonwealth v. Woods, 454 Pa. 250, 311 A.2d 582 (1973). We find no abuse of discretion in this case. ' We have examined the photograph. It depicts the front seat of the victim’s car, empty except for the officer’s hat, with a small amount of blood on the seat and on the passenger door. The wounded officer does not appear in the photograph. The picture is not gruesome and it is very unlikely that such a photograph would inflame the minds of the jurors. Furthermore, the time of the shooting was critical and there was considerable testimony as to the amount of time it took the wounded officer to get out of the car and secure assistance. The picture was relevant to aid the jury in understanding how the officer extricated himself from the car.

Appellant next argues that the court’s “ruling” on the admissibility of appellant’s prior conviction for theft by receiving was error which precluded appellant from taking the stand. This issue is not properly before us for review. No such “ruling” appears in the record. There is nothing to indicate that appellant was going to take the witness stand or that the Commonwealth intended to introduce his prior conviction for theft by receiving. It appears that at one point defense counsel inquired of the trial judge, off the record, whether the prior conviction would be admissible if appellant took the stand. The Court indicated, again off the record, that it would. Such an exchange does not preserve the issue for appellate review.

In any event, admission of appellant’s prior record would have been proper in this case under the test set out in Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973). Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978) refined the Bighum rule, stating that the court should consider: (1) the degree to which the commission of the prior offense reflects upon the veracity of defendant; (2) the likelihood, in view of the nature and extent of the prior record, that it would have a greater tendency to smear the character of the defendant and suggest a propensity to commit the crime for which he stands charged, rather than provide legitimate reason for discrediting him as an untruthful person; (3) the age and circumstances of defendant; (4) the strength of the prosecution’s case and the prosecution’s need to resort to this evidence as compared with the availability to the defense of other witnesses through which its version of the incident can be presented; and (5) the existence of alternative means of attacking defendant’s credibility-

Theft by receiving is a crimen falsi which reflects upon the veracity of appellant. Commonwealth v. Pilosky, 239 Pa. Superior Ct. 233, 362 A.2d 253 (1967). It is unlikely that a conviction of theft by receiving would suggest a propensity to commit the crime of attempted murder. At the time of the attack on Chief Nelson, appellant was of the same age as when the prior crime was committed. Also, appellant had other means by which to defend himself. Appellant called numerous alibi witnesses and if he had taken the stand, it is obvious that they would have testified that he was with those witnesses. Finally, there was no other adequate way for the Commonwealth to attack appellant’s credibility.

Appellant argues that the trial court erred in denying appellant’s demurrer. This issue has been waived, since appellant presented a defense after the denial. Commonwealth v. Sourbeer, 492 Pa. 17, 422, A.2d 116 (1980); Commonwealth v. McNeal, 493 Pa. 395, 426 A.2d 606 (1981).

Appellant’s final argument is that the verdict was against the evidence and against the weight of the evidence. It is true that all of the evidence against appellant was circumstantial. However, circumstantial evidence alone may be sufficient to convict a defendant of a crime. Commonwealth v. Cox, 460 Pa. 566, 333 A.2d 917 (1975). The Commonwealth presented the following evidence. A patch was found lying on top of the grass to the side of the car where Chief Nelson was shot, which was similar to the type of patch appellant was seen wearing on the evening of the crime and the following day. Furthermore, leg and head hairs taken from the patch exhibited the same microscopic characteristics as appellant’s leg and head hairs. Two days after the shooting and before any details were made public, appellant told a friend about two types of ammunition used and the specific defensive actions taken by Chief Nelson. There was evidence of prior ill will and bad feelings between the appellant and the victim. Appellant spoke on several occasions, both before and after the shooting, about killing Chief Nelson and two other officers. The night before the shooting, appellant was seen taking a shotgun out of his parents’ home.

Appellant’s evidence consisted mainly of a large number of persons who stated that during the night of the shooting, they observed appellant at various times at a drive-in theater some twelve miles away from the scene of the crime. The credibility of these witnesses was questionable. Even more important, however, none of these witnesses could say for certain that appellant was at the theater between nine and eleven o’clock. In addition, the defense called two witnesses who saw persons not fitting appellant’s description running in Wiconisco on the night of the shooting. On cross-examination, it was revealed that the description given by one witness, appellant’s neighbor, was far different on the night of the shooting than it was after appellant was charged. Another witness gave a description of a youth seen running almost one mile away from the scene of the crime. We are of the opinion that a review of the record shows that the verdict was supported by the evidence.

Judgment of sentence affirmed.

      . We are aware that there is some question whether “boiler-plate” weight of the evidence motions, rather than specific allegations of error are adequate to preserve for appellate review, questions of the sufficiency of the evidence. See Commonwealth v. Philpot, 491 Pa. 598, 421 A.2d 1046 (1980). However, in the interest of judicial economy, we will examine the merits of appellant’s claim.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    446 A.2d 290
    COMMONWEALTH of Pennsylvania v. George Raymond HOOK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 30, 1981.
    Filed May 28, 1982.
    Petition for Allowance of Appeal Denied Jan. 20,1983.

      Scott Lee Kelley, Assistant Public Defender, York, for appellant.
    Sheryl Ann Dorney, Assistant District Attorney, York, for Commonwealth, appellee.
    Before BROSKY, WIEAND and MONTEMURO, JJ.
   WIEAND, Judge:

George Raymond Hook was convicted by a jury of burglary, robbery, attempted rape and aggravated assault. On direct appeal, his conviction was affirmed by this Court, and allocatur was denied by the Supreme Court. Hook next attempted to attack his conviction collaterally by a P.C.H.A. petition. After hearing, the trial court entered an order dismissing the petition. Hook then filed the instant appeal. He argues (1) that the trial court erred when it permitted the Commonwealth to attack the credibility of his testimony by showing prior inconsistent statements made at the time of his arrest; (2) that trial counsel was ineffective regarding his handling of pre-trial identification procedures alleged to be unduly suggestive; and (3) that trial counsel was ineffective for failing to challenge three jurors who had signed an anti-rape petition and for failing to investigate adequately appellant’s claim of alibi. The first issue has already been litigated finally; the remaining issues are lacking in merit. Accordingly, the order denying relief will be affirmed.

The Commonwealth’s use of appellant’s post arrest statement for the purpose of impeaching his testimony at trial was argued on direct appeal and decided adversely to him. That issue, therefore, has been finally litigated and may not be raised collaterally in a P.C.H.A. proceeding. Commonwealth v. Lewis, 278 Pa.Super. 35, 37-38, 419 A.2d 1342, 1344 (1980); Commonwealth v. Gardner, 250 Pa.Super. 86, 91, 378 A.2d 465, 468 (1977).

In order to comprehend fully the meritless nature of appellant’s challenge to counsel’s stewardship regarding appellant’s pre-trial identification, it is essential that one be aware of the facts. The testimony at trial showed that the victim, a sixty-nine year old widow, was knocked to the ground when appellant struck her on the head with a pistol. Thereafter, he struck her at least three more times and inflicted lacerations requiring nine sutures to close. He dragged her into the house, where she was bound, gagged, undressed, threatened and indecently assaulted. An attempted rape failed of fruition because of appellant’s impotency. He then threw the widow into a closet, barricaded it, and ran away with her money and pocketbook. She managed to free herself and call a friend who summoned police. She positively identified appellant as her assailant, having seen him on six or seven prior occasions.

Appellant’s counsel filed a pre-trial motion to suppress the victim’s identification testimony because of an allegedly suggestive confrontation at the preliminary hearing; but this motion was denied after hearing. Appellant contended at his P.C.H.A. hearing that counsel had been ineffective (a) for failing to request a pre-trial line-up and (b) for failing to preserve the suppression issue on direct appeal. Trial counsel testified that he did not argue the suppression issue on appeal because it lacked merit and did not request a pre-trial line-up because a line-up would merely have strengthened the victim’s already positive identification.

It is well settled in Pennsylvania that counsel’s assistance will not be deemed ineffective if a reviewing court is able to conclude that the particular course of action chosen by counsel had some reasonable basis designed to further the client’s interest. Commonwealth v. Williams, 273 Pa.Super. 147, 149, 416 A.2d 1132, 1133 (1979) citing Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-05, 235 A.2d 349, 352-53 (1967). Furthermore, it goes almost without saying that the failure to pursue meritless claims does not constitute ineffective representation. Commonwealth v. Weathers El, 485 Pa. 28, 32, 400 A.2d 1295, 1297 (1979); Commonwealth v. Hubbard, 472 Pa. 259, 277-78, 372 A.2d 687, 696 (1977); Commonwealth v. Gay, 269 Pa.Super. 164, 167, 409 A.2d 416, 417 (1979).

Appellant’s claims concerning the identification testimony of the victim are patently lacking in merit. “To begin with, an accused does not have a constitutional right to a line-up .... [Therefore,] counsel’s failure to request a lineup ... is not per se ineffective assistance.” Commonwealth v. Davis, 293 Pa.Super. 447, 455-56, 439 A.2d 195, 200 (1981). Moreover, under the circumstances of the instant case, counsel’s decision not to request a line-up was entirely reasonable. The victim’s identification of appellant had been positive and based on the solid foundations of prior familiarity with appellant and a substantial opportunity to observe him during the course of the assault. As counsel observed, a line-up would have been fruitless and would have served only to strengthen the Commonwealth’s case by providing yet another opportunity for a consistent identification. Counsel was not ineffective for failing to request a line-up.

Similarly, counsel was not ineffective for failing to pursue on direct appeal the question of the suggestive nature of the pre-trial identification. Such a claim would have been wholly lacking in arguable merit. The identification to which appellant referred in challenging counsel’s ineffectiveness had taken place at the magistrate’s office prior to the preliminary hearing. The record establishes that a confrontation occurred just prior to the start of that hearing. Appellant was neither clothed in conspicuous prison garb nor handcuffed and was seated among others in an outer office. When the victim emerged from a conference room, she immediately and without hesitation recognized and identified appellant as her assailant. Prior to making this identification, the victim had not been aware that her assailant would be present at the preliminary hearing. Under these circumstances, we concur with counsel’s reasoned determination that the confrontation was neither unduly suggestive nor likely to produce a misidentification and that the trial court properly refused to suppress the victim’s in-court identification. This was particularly so in view of the substantial, independent basis for such testimony.

Next, appellant questions counsel’s stewardship in that he failed to challenge three jurors who had signed an anti-rape petition which had been circulated in the community shortly before appellant’s trial. This petition had been motivated by a particularly heinous rape which had occurred in York County. However, it was unrelated to appellant’s case. Appellant contended in the P.C.H.A. proceedings that, because the charges against him included a charge of rape, counsel had been ineffective for permitting the three jurors to serve. We disagree. As a result of counsel’s questions specifically directed to the signing of the petition, it became apparent that the signing of the petition signified no more than opposition to rape on the part of the potential jurors. It did not disclose an inability to view objectively the guilt or innocence of a person charged with such an offense. That these jurors may not have been devoid of opinion on the matter of rape was not a basis for attacking their impartiality or competence to serve as jurors during appellant’s trial. See, e.g., Commonwealth v. Johnson, 452 Pa. 130, 136, 305 A.2d 5, 8 (1973); Commonwealth v. Short, 278 Pa. Super. 581, 590-91, 420 A.2d 694, 698-99 (1980). Moreover, counsel testified that he had discussed the potential conflict with appellant, who indicated no opposition to allowing the three jurors to serve. Under these circumstances, it is evident that counsel was not ineffective in failing to challenge the three jurors.

Appellant’s final claim is that trial counsel failed to investigate thoroughly certain matters pertaining to his alibi defense, specifically, that counsel failed to subpoena documents from the unemployment office in Pottstown, Montgomery County, which, appellant suggests, would have shown that he was in Pottstown collecting his unemployment check on the afternoon of the day of the assault. The record fails to substantiate appellant’s averment of inadequate investigation. Defense counsel’s testimony at the P.C.H.A. hearing indicated that investigations as to appellant’s whereabouts on the day in question had been conducted, both by appellant’s parole officer and by a private investigator. While records confirmed that appellant had been at the unemployment office on the day of the assault, they did not establish a particular time for his visit. Accordingly, counsel concluded that the records alone would not establish an alibi defense. In order to support an alibi defense, however, counsel utilized other testimony to demonstrate appellant’s presence elsewhere than at the scene of the assault. Appellant has failed to demonstrate that the exercise of counsel’s judgment can be equated with ineffectiveness. We find no fault with counsel’s course of action.

For the foregoing reasons, we conclude that counsel’s stewardship was designed to serve the best interests of his client and did not constitute ineffective representation.

The order denying P.C.H.A. relief is affirmed.

      . Commonwealth v. Hook, 269 Pa.Super. 612, 417 A.2d 757 (1979).


text:
    446 A.2d 293
    In Matter of ESTATE OF Blanch N. WARNER. Appeal of Robert E. NESS and Patricia R. Ness.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1981.
    Filed May 28, 1982.

      Allen H. Smith, York, for appellants.
    Earl R. Doll, York, for appellee.
    Before WICKERSHAM, WIEAND and MONTEMURO, JJ.
   WIEAND, Judge:

If a tract of land containing 10.4 acres, more or less, is sold at public auction to a purchaser who pays the full bid price and accepts a deed for the land, may the purchaser thereafter recover damages because a later survey discloses that the tract in fact contains only 8.163 acres? The Orphans’ Court of York County concluded that there could be no recovery and entered a decree dismissing a claim therefor. We affirm.

Blanch Warner owned an improved tract of land in New-berry Township, York County. Following her death, the executor of her estate offered the land for sale at public auction. A description and sketch of the tract were obtained from the County Tax Map Office; and on the basis thereof the tract was advertised and offered for sale. It was represented as containing 10.4 acres, more or less. When the sale was conducted on June 24, 1980, Robert E. Ness submitted a high bid of $80,000. Final closing was held on July 17, 1980, when the executor delivered, and Ness and his wife accepted, a deed for the land as previously described. The deed contained only a fiduciary’s warranty. Subsequently, a survey was made and disclosed -that the tract contained only 8.163 acres. The purchaser then made a claim against the Estate of Blanch Warner to recover damages because of a deficiency in the quantity of land.

As a general rule, where a sale of real estate is of a tract as a whole, and not by the acre, the grantee, unless there has been fraud or the grantor has guaranteed the number of acres, is not entitled to recover a portion of the consideration paid merely because the quantity of land is less than estimated at the time of sale. 92 C.J.S., Vendor and Purchaser § 266. “The reason usually assigned for this rule is that the purchaser, in such cases, is considered as getting the specific land that he contracted for, and must be deemed to have assumed the risk of a deficiency in quantity, especially if he knows, or has an equal means of knowing, the boundaries of the land and the quantity thereof.” Id. This is particularly so where the quantity is qualified to indicate that it might be more or less.

The courts in Pennsylvania have followed this rule. Thus, in Keen v. Eaby, 254 Pa. 273, 98 A. 1040 (1916), where land had been offered at public sale as “a tract of 16 acres, with a two-story frame house, frame bank barn, etc.,” the purchaser refused to accept a deed without abatement of the price when it was determined after the sale that the tract contained only 14V2 acres. Because the sale had not been by the acre, but as a whole, the Court held the purchaser was not justified in his refusal to take and pay for the land as agreed.

Similarly, in White v. Price, 202 Pa. 128, 51 A. 755 (1902), an agreement of sale had called for a farm containing about 77 acres of land. In the absence of bad faith, there having been no guarantee of the number of acres contained in the farm purchased, the purchaser was not entitled to an abatement of the purchase price when a survey showed that the quantity was six acres short of that which it had been thought to contain. So also, in Reading, et al. v. Finney, et al., 73 Pa. 467 (1873), it was held that a misstatement of the number of acres in a tract would not vitiate a sale of the tract as a whole. See also Riddle, et al. v. Foster, 32 Pa. 163 (1858); Hassel v. Denlinger, 24 Lanc.Law Rev. 323 (1907).

In Landreth v. Howell, 24 Pa.Superior Ct. 210 (1904), a master in partition sold a tract of land described by metes and bounds which was represented to contain six acres, three roods and eight perches of land, more or less, at $2,500 per acre. About a year after title had been conveyed, a survey disclosed a shortage of two thirds of an acre. The grantee thereupon brought an action in assumpsit to recover a portion of the consideration paid. In the absence of evidence of fraud, there could be no recovery; and a compulsory non-suit was properly entered.

In the instant case, appellants had purchased and accepted title to a parcel of land estimated to contain 10.4 acres, more or less. The tract had not been purchased by the acre, and there had been no guarantee regarding the quantity of land which the tract contained. Indeed, the quantity had been qualified to indicate that it might be more or less. There was present not the slightest hint of fraud. Under these circumstances, appellants were not entitled to recover a portion of the purchase price because a survey made after closing disclosed that the tract contained only 8.163 acres.

Decree affirmed.


author: McEWEN, Judge: WIEAND, Judge,

text:
    446 A.2d 295
    COMMONWEALTH of Pennsylvania v. Robert Andrew LEWIS, Appellant.
    Superior Court of Pennsylvania.
    Argued May 27, 1981.
    Filed May 28, 1982.
    Petition for Allowance of Appeal Denied Sept. 27, 1982.

      Louis Podel, Philadelphia, for appellant.
    Garold E. Tennis, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and McEWEN, JJ.
   McEWEN, Judge:

Appellant-defendant here contends that the trial judge denied his constitutional right to an appeal when the trial judge, after the defendant had escaped from custody and while a fugitive for fourteen months, dismissed the post-trial motions of the defendant. We reject this contention and, therefore, affirm.

The defendant was convicted on March 10, 1978 by a jury of robbery, burglary and criminal conspiracy after a trial in the Philadelphia County Common Pleas Court. Even though the defendant had failed to file timely motions with the Common Pleas Court following the verdict of guilt, the trial judge approved the petition of the defendant for leave to file post-trial motions nunc pro tunc. Those motions were filed on April 20, 1978 and scheduled for the presentation of oral argument on June 15, 1978.

Since the defendant had escaped from prison and was a fugitive on June 15, 1978, the scheduled date of argument, the trial judge continued the argument date until further notice but took no other action.

The record reflects that when the presentation of oral argument was next scheduled on September 26, 1978, the defendant was still a fugitive and failed to appear, as a result of which the trial judge directed that a bench warrant be issued and that sentence be deferred pending apprehension.

It appears, therefore, that while the trial judge simply continued argument upon the post-trial motions when first listed on June 15,1978, the trial judge specifically addressed the fugitive status of the defendant at the second listing on September 26, 1978, and proceeded to (1) issue a bench warrant and also (2) defer sentence until the appellant was apprehended. The action of the court at this second listing made clear that no longer would sentence be deferred for argument upon the motions. Rather, the court directed that the next proceeding in the case would be for the purpose of imposing sentence, once the defendant was again in custody. It is obvious, therefore, that the court considered the escape and flight by the defendant to constitute a waiver of the outstanding motions and deemed that, thereby, the motions were concluded.

The defendant, after some fourteen months as a fugitive, was finally returned to custody, not by his voluntary surrender but by his apprehension. When the court imposed the sentence on January 16, 1980, the court stated that the appellant had waived his post-trial motions by reason of his escape and flight. The court directed the defendant to serve a term of from ten to twenty years for robbery and a consecutive term of from five to ten years for burglary, and suspended sentence on the charge of criminal conspiracy.

Appellant contends that the refusal of the trial judge to consider the merits of the post-trial motions was a denial of his constitutional right to an appeal. Appellant specifically argues that Article V, Section 9 of the Pennsylvania Constitution guarantees the right of appeal and that his escape and continuing flight was not an intentional, intelligent and knowing waiver of this constitutional right. The Pennsylvania Supreme Court has not viewed Article V, Section 9 as an obstacle to the type of dismissal which we are here called upon to review since that very Court itself dismissed, sua sponte, appeal proceedings pending before it, where the appellant had become and remained a fugitive subsequent to the time that appellant had filed the appeal with and submitted briefs to the Supreme Court. Commonwealth v. Tomlinson, 467 Pa. 22, 354 A.2d 254 (1976). Our Supreme Court had, just one year earlier, discussed this issue in Commonwealth v. Galloway, 460 Pa. 309, 311-12, 333 A.2d 741, 743 (1975):

The rationale behind dismissal of an appeal while a convicted defendant is a fugitive from justice rests upon the inherent discretion of any court to refuse to hear the claim of a litigant who, by escaping, has placed himself beyond the jurisdiction and control of the court and, hence, might not be responsive to the judgment of the court. See Smith v. United States, 94 U.S. 97, 24 L.Ed. 32 (1876); Ruetz v. Lash, 500 F.2d 1225 (7th Cir. 1974); United States v. Swigart, 490 F.2d 914 (10th Cir. 1973); Johnson v. Laird, 432 F.2d 77 (9th Cir. 1970).

We thus see that the Pennsylvania Supreme Court has not been disposed to view any provision of the constitution as precluding it from dismissal of an appeal by reason of the escape and flight of the appellant. Nor has this court been so inclined. Commonwealth v. Albert, 260 Pa.Super. 20, 393 A.2d 991 (1978); Commonwealth v. Boyd, 244 Pa.Super. 98, 366 A.2d 934 (1976); Commonwealth v. Barron, 237 Pa.Super. 369, 352 A.2d 84 (1975).

No more sound nor more authoritative rationale can be provided than was provided by our eminent and distinguished colleague, Judge Gwilym A. Price, in Commonwealth v. Barron, supra, when he quoted from two opinions of the United States Supreme Court which, interestingly enough, though a century apart, reflect a consistency of view by that Court upon this issue:

No persuasive reason exists why this Court should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints placed upon him pursuant to the commission. While such an escape does not strip the case of its character as an adjudicable case for controversy, we believe it disentitles the defendant to call upon the resources of the Court for determination of his claims. Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 498-99, 24 L.Ed.2d 586, 587-88 (1970).
It is clearly within our discretion to refuse to hear a criminal case in error, unless the convicted party, suing out the writ, is where he can be made to respond to any judgment we may render. In this case it is admitted that the plaintiff in error has escaped, and is not within the control of the court below, either actually, by being in custody, or constructively, by being out on bail. If we affirm the judgment, he is not likely to appear to submit to his sentence. If we reverse it and order a new trial, he will appear or not, as he may consider most for his interest. Under such circumstances, we are not inclined to hear and decide what may prove to be only a moot case. Smith v. United States, 94 U.S. at 97, 24 L.Ed. 32 (1876).

Judgment of sentence affirmed.

WIEAND, J., has filed a dissenting opinion.

WIEAND, Judge,

dissenting:

I respectfully dissent. It is one thing to dismiss post-verdict motions when a defendant is not within the custody and control of the Court, but it is quite another matter to refuse to consider undismissed post-verdict motions at a time when the defendant has been returned to custody and thus to the Court’s power and control.

The instant appeal involves post-trial motions in the latter posture. Argument on post-trial motions had been continued generally, but they had not been dismissed prior to the time when appellant was recaptured. The post-trial motions, therefore, remained viable but undecided after appellant was once again subject to the jurisdiction of the trial court and could be made to respond to any judgment the court might enter. Under such circumstances, both the Supreme Court of Pennsylvania and this Court have held that the defendant is entitled to have his post-trial motions decided on their merits. See Commonwealth v. Galloway, 460 Pa. 309, 333 A.2d 741 (1975); Commonwealth v. Albert, 260 Pa.Super. 20, 393 A.2d 991 (1978); Commonwealth v. Borden, 256 Pa.Super. 125, 389 A.2d 633 (1978). See also Commonwealth v. Harrison, 289 Pa.Super. 126, 129-31, 432 A.2d 1083, 1085-1086 (1981).

The reason for this distinction becomes more readily apparent if we consider the hypothetical situation in which an escapee is re-captured within a few hours of his escape. Such a defendant, in my judgment, could not properly be held to have forfeited the right to obtain a judicial review of post-verdict motions pending at the time of his escape. It is not the period during which the escape continues that is controlling, however. Rather, it is whether post-verdict motions have been dismissed during the period in which the defendant was outside the custody and control of the court which is determinative.

Under the present state of the law, the merits of appellant’s post-verdict motions should have been considered, and it was an abuse of discretion to dismiss them out of hand after appellant had again been returned to custody and thus to the Court’s power and control.

For this reason, I would remand the record to the trial court with directions to consider the merits of appellant’s post-trial motions.

      . Information No. 0852, April 1977, has an entry in writing which reads: “6-15-78 Room 653 ... Judge J. T. McDermott ... Post-trial Motions C.F.N. [continued until further notice].”

      . The information mentioned in footnote 1, above, has a second and signed entry in writing which immediately follows the first entry, and reads: “9-26-78 Defendant F.T.A. [failed to appear]—Bench Warrant issued—Sentence further deferred pending apprehension. By the court. McDermott, J.”

      . Article V, Section 9, provides:
      There shall be a right of appeal in all cases to a court of record; and there shall also be a right of appeal from a court of record or from an administrative agency to a court of record or to an appellate court, the selection of such court is to be provided by law; and there shall be such other rights of appeal as may be provided by law.


author: McEWEN, Judge:

text:
    446 A.2d 298
    COMMONWEALTH of Pennsylvania v. Louis A. MIELE, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted June 2, 1981.
    Filed May 28, 1982.

      Anthony D. Miele, Williamsport, for appellant.
    Kenneth D. Brown, District Attorney, Williamsport, for Commonwealth, appellee.
    Before McEWEN, MONTEMURO and SHERTZ, JJ.
   McEWEN, Judge:

We here consider an appeal from a pre-trial Order which denied a motion by appellant to quash the information lodged against him. The appellant claims that a retrial would subject him to double jeopardy since the trial court had declared a mistrial during an earlier trial arising out of the same charges. We disagree and affirm the order of the eminent Lycoming County Common Pleas Court President Judge Charles F. Greevy.

The appellant was charged with driving under the influence, resisting arrest and disorderly conduct. After a jury had been sworn to try the appellant on those charges and the testimony of the two arresting police officers had been completed, a third police officer, who assisted at the scene of the arrest, offered a prejudicial remark during the course of his direct examination by the Commonwealth. The defendant moved for and the trial judge declared a mistrial. Appellant subsequently filed a motion to quash the information in which he claimed, inter alia, that the prejudicial remark was induced intentionally by the Commonwealth to force the defendant to request a mistrial; it is upon that basis that appellant contends a retrial would result in a violation of the double jeopardy clause. The Common Pleas Court, after a hearing, denied the motion of appellant to quash the information. This appeal followed.

Appellant here urges us to expand the definition of prosecutorial misconduct to include the misconduct of prosecution witnesses whose prejudicial remarks are contrived to cause a mistrial. While we would decline to make such an unwarranted extension of the law, we need not decide that issue for the reason that the record makes clear that the prejudicial remark in this case was not contrived.

The remark under scrutiny is set forth in the following excerpt of the testimony of the police officer during his direct examination by the Commonwealth:

Q. Did you form an opinion that evening as to the defendant’s condition?
A. It was my opinion he had too much to drink. (Objection sustained).
Q. Did you form an opinion, sir?
A. Yes.
Q. And what was that opinion? (Objection overruled).
A. It’s my belief that he was under the influence of alcohol, yes.
Q. And what was that based upon?
A. His violent conduct and his strong odor of alcohol and my previous knowledge of Mr. Miele, (emphasis supplied).
By Mr. Miele: I object your honor. We move for a mistrial. This is entirely prejudicial. (N.T. 109-110).

While appellant focuses upon the prejudicial remark of the witness as being contrived, appellant also suggests that the prosecutor may be deemed to have been substantially certain that a mistrial would be declared as a result of the question posed. We are compelled, therefore, to examine the fundamental principles concerning prosecutorial misconduct and double jeopardy. As we do so, it is helpful to distinguish at the outset between the terms prosecutorial error and prosecutorial misconduct.

As a general proposition, when a mistrial is granted on the motion of a defendant, the principles of double jeopardy do not bar a subsequent prosecution even though the motion is prompted by prosecutorial error. Commonwealth v. Palazzo, 275 Pa.Super. 135, 418 A.2d 649 (1980). However, when the motion of the defendant for a mistrial is compelled by intentional error by the prosecutor aimed at inducing defendant to move for a mistrial and, the prosecution is thereby afforded another possibly more favorable opportunity to convict the defendant, the double jeopardy clause will bar a retrial. Commonwealth v. Mitchell, 488 Pa. 75, 410 A.2d 1232 (1980). Our Supreme Court has addressed the issue of what constitutes prosecutorial misconduct and adopted the standard set by the United States Supreme Court:

The United States Supreme Court has enunciated principally two types of prosecutorial overreaching. First there is the prosecutorial misconduct which is designed to provoke a mistrial in order to secure a second, perhaps more favorable, opportunity to convict the defendant. See United States v. Dinitz, supra [424 U.S. 600] at 611, 96 S.Ct. [1075] at 1081, [47 L.Ed.2d 267 at 276]. Second, there is the prosecutorial misconduct undertaken in bad faith to prejudice or harass the defendant. See Lee v. United States, supra [432 U.S. 23] at 32, 97 S.Ct. [2141] at 2147, [53 L.Ed.2d 80 at 88]; United States v. Dinitz, supra at 611, 96 S.Ct. at 1081-82, [47 L.Ed.2d 267 at 276], In contrast to prosecutorial error, overreaching is not an inevitable part of the trial process and cannot be condoned. It signals the breakdown of the integrity of the judicial proceeding, and represents the type of prosecutorial tactic which the double jeopardy clause was designed to protect against.

Commonwealth v. Starks, 490 Pa. 336, 342, 416 A.2d 498, 500 (1980); See also Commonwealth v. Lee, 490 Pa. 346, 416 A.2d 503 (1980); Commonwealth v. Clark, 287 Pa.Super. 380, 430 A.2d 655 (1981).

Upon review of a pretrial motion to dismiss on double jeopardy grounds, we will affirm unless the record supports a finding of prosecutorial overreaching. Commonwealth v. Clark, supra, 287 Pa.Super. at 391, 430 A.2d at 655; Commonwealth v. Perry, 270 Pa.Super. 412, 416, 411 A.2d 786, 788 (1979).

The law is clear that the prohibited overreaching or prosecutorial misconduct applies only to acts of the prosecutor himself. See Commonwealth v. Palazzo, supra, (double jeopardy clause did not bar retrial of the defendant after a mistrial had been granted following prejudicial remarks by a defense witness during cross examination since there was no indication that the prosecution had sought to abort the trial); See also Commonwealth v. Mitchell, supra, (double jeopardy clause did not bar retrial after mistrial declared where, in response to question of the prosecutor intended to elicit information supporting the reliability of the witness’s identification of the defendant, the witness made reference in the presence of the jury to a prior conviction of the defendant).

An examination of the record, which includes a transcript of the trial as well as of the hearing on the motion to quash, compels the conclusion that the prosecutor did not induce the prejudicial remark or otherwise overreach or engage in prosecutorial misconduct.

We further conclude from that study of the complete record that the prejudicial remark of the police officer during his testimony as a Commonwealth witness was not a contrived utterance. We do not accept the contention of appellant that the prejudicial remark “by this witness, a court-wise police officer, to such a simple question was intended to be overreaching.” (Brief of appellant at p. 14). Rather, the utterance of the witness was quite inadvertent. We share the view of the distinguished Judge Kenneth H. Koch, who presided over the trial and was moved to declare after the remark was made, “I have no doubt about it, and I want the record to make clear that there was no doubt about it, that I think it was unintentional.” (N.T. 117-18).

Order affirmed.

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


author: CIRILLO, Judge:

text:
    446 A.2d 300
    GLICKMAN REAL ESTATE DEVELOPMENT, Appellee, v. Richard KORF, David Notkin, Robert Fitzgerald & Robert Linett, All Jointly and Severally Liable, Appellants.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1982.
    Filed May 28, 1982.

      Arthur C. Kellum, Pittsburgh, for appellants.

      Stephen A. Glickman, Pittsburgh, for appellee.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   CIRILLO, Judge:

This is an appeal from an Order of the Court of Common Pleas of Allegheny County, whereby judgment in the amount of $804.00 was entered for the appellee, landlord.

The landlord filed a Complaint in Assumpsit, alleging that the appellants, tenants, breached their lease of April 24, 1978. The landlord claimed damages of $2490.00. The tenants filed an Answer and Counterclaim, alleging that the landlord failed to maintain the premises in habitable condition. The tenants sought damages of $1863.00, plus costs, interest, punitive damages and attorneys’ fees. On September 7, 1979, following a hearing before a Board of Arbitrators, the tenants were awarded the sum of $800.00. The landlord appealed this award to the Court of Common Pleas. On July 15, 1980, this case was tried before the Honorable Robert A. Doyle, sitting without a jury. Judge Doyle found for the landlord in the amount of $804.00. Following an untimely appeal and remand, the tenants filed Nunc Pro Tunc Exceptions alleging, inter alia, that the verdict was illegal and against the weight of the evidence. After argument before a court en banc, on February 14, 1981, the Exceptions were dismissed, and this appeal followed.

The tenants allege, on appeal, that the findings of the trial court, in favor of the landlord, were against the weight of the evidence and contrary to the law.

In April, 1978, after having inspected the premises located at 5303 Beeler Street, Pittsburgh, Pennsylvania, the tenants entered into a fifteen month lease agreement with the landlord beginning June 1, 1978. The total rent was $6210.00, payable in installments of $415.00 per month, with a $15.00 rebate for timely payments. The tenants were also required to give the landlord a security deposit of $500.00. At the time the agreement was executed, the tenants incorporated into the lease their request that the thermostat on the stove and the gas space heaters in the bedrooms be repaired.

Throughout the term of the lease, the tenants made several other requests for repairs to the premises. In November, 1978, the Allegheny County Health Department made an inspection of the premises. Under department regulations, violations totaling 20 points renders a dwelling unfit for human habitation. Their inspection noted violations totaling 33 points and on November 21, 1978, the landlord was given notice that the premises were considered unfit for human habitation. The tenants were admitted into a rent withholding program and beginning on December 1, 1979, they made payments into an escrow account with the Mellon Bank.

By mid-December, 1978, the landlord had installed a new central heating system and had made numerous other repairs. In February, 1979, the county paid to the landlord the tenants’ rent held in escrow. However, at an inspection which took place on February 21, 1979, new defects were found and the tenants were again entitled to begin rent withholding, starting on March 1, 1979. The tenants did not make these subsequent payments into escrow, rather, they stopped paying any rent whatsoever. The lower court found that the total repairs made by the landlord, in a residence which he bought for $22,500.00, amounted to over $8000.00 and included the installation of new electrical wiring, plumbing, a roof and a bathroom. The lower court also found that all of the matters noted by the Allegheny County Health Department on re-inspection were abated prior to the time that the tenants vacated the premises on May 31, 1979.

While it is true that an appellate court is not bound by a trial court’s finding of fact which is flagrantly contrary to the evidence, we do not find such an abuse by the court below in this instance.

The Pennsylvania Supreme Court, in the case of Pugh v. Holmes, 486 Pa. 272, 405 A.2d 897 (1979), held that the doctrine of caveat emptor is no longer applicable to residential leases, but instead, all residential leases contain an implied warranty of habitability. The Court went on to say that at a minimum, the implied warranty of habitability means that the premises must be safe and sanitary; however, there is no obligation on the part of the landlord to supply a perfect or aesthetically pleasing dwelling. Id., 486 Pa. at 289, 405 A.2d 897. To be a breach of the implied warranty of habitability, the defect must be of a kind and nature which prevents the use of the dwelling for its intended purpose to provide premises fit for habitation. Id., 486 Pa. at 289, 405 A.2d 897. To establish a breach of the warranty of habitability, the defect must be of a kind and nature which prevents the use of the dwelling for its intended purpose to provide premises fit for habitation. Id., 486 Pa. at 289, 405 A.2d 897. To establish a breach of the warranty of habitability, a tenant must prove that he or she gave notice to the landlord of the defect or condition, that the landlord had a reasonable opportunity to make the necessary repairs and that the landlord failed to do so. Id., 486 Pa. at 290, 405 A.2d 897.

In this case, the tenants gave notice to the landlord of several defects in the leased premises. This was an old dwelling being leased to the tenants and the condition of the building was reflected in the moderate rent charged by the landlord. We find that the landlord made the necessary repairs to maintain the premises in a habitable condition and did so within a reasonable time. .Specifically, the tenants claim that there was no heat on the second and third floors until the middle of December, 1978. The landlord had offered to either repair the broken space heaters, which could have been done promptly, or to put in a new central heating system, which would take a longer time to install. The tenants opted for the new heating system. In light of the time necessary to put in an entirely new heating system, as well as the availability of workmen to do the job, the delay in restoring heat to the premises was not unreasonable.

After an inspection of the premises, the Allegheny County Health Department gave notice to the landlord on November 21, 1978 that the premises were unfit for human habitation. Under the Rent Withholding Act, the tenants were entitled to pay rent into escrow if they wished to remain on the premises. The right of a tenant to pay rent into escrow under the Rent Withholding Act is a temporary measure to compel the owner to make the property fit for human habitation under the penalty of losing his rent for six months or having his property condemned as unsafe and unfit. Klein v. Allegheny County Health Department, 441 Pa. 1, 269 A.2d 647 (1969); Newland v. Newland, 26 Pa. Cmwlth. 519, 364 A.2d 988 (1976). Starting in December, 1978, the tenants made rent payments into escrow. By February, 1979 the County Health Department determined that the premises were fit for habitation and awarded the rent paid into escrow to the landlord. Later in February, 1979, after discovering new violations on the premises, the County Health Department again allowed the tenants to pay rent into escrow, thus starting anew the six-month withholding period provided for in the Rent Withholding Act. The tenants, however, did not make these subsequent rent payments to the escrow account or to the landlord, even though they remained on the property until May 31, 1979. The Rent Withholding Act expressly states that “[d]uring any period when the duty to pay rent is suspended, and the tenant continues to occupy the dwelling, the rent withheld shall be deposited by the tenant into an escrow account... ” This language makes it clear that a tenant may in no event remain in possession of premises determined to be “unfit for human habitation” without paying the required rent to the escrowee. DePaul v. Kauffman, 441 Pa. 386, 272 A.2d 500 (1971). Consequently the tenants clearly breached their obligation to make rental payments under the lease agreement.

Accordingly, we affirm the JUDGMENT of the court below.

      . This judgment was based upon rental in the sum of $415.00 due for each of the months of March, April and May of 1979, and $59.00 for water and sewage charges due by the tenants, for a total of $1304.00. From this amount the security deposit of $500.00, given by the tenants to the landlord at the outset of the lease, was deducted, leaving a sum of $804.00.

      . See: Commonwealth v. Dunklin, 219 Pa.Super. 189, 280 A.2d 629 (1971).

      . The Rent Withholding Act states:
      Notwithstanding any other provision of law, or of any agreement, whether oral or in writing, whenever the Department of Licenses and Inspections of any city of the first class, or the Department of Public Safety of any city of the second class, second class A, or third class as the case may be, or any Public Health Department of any such city, or of the county in which such city is located, certifies a dwelling as unfit for human habitation, the duty of any tenant of such dwelling to pay, and the right of the landlord to collect rent shall be suspended without affecting any other terms or conditions of the landlord-tenant relationship, until the dwelling is certified as fit for human habitation or until the tenancy is terminated for any reason other than nonpayment of rent. During any period when the duty to pay rent is suspended, and the tenant continues to occupy the dwelling, the rent withheld shall be deposited by the tenant in an escrow account1 in a bank or trust company approved by the city or county as the case may be and shall be paid to the landlord when the dwelling is certified as fit for human habitation at any time within six months from the date on which the dwelling was certified as unfit for human habitation. If, at the end of six months after the certification of a dwelling as unfit for human habitation, such dwelling has not been certified as fit for human habitation, any moneys deposited in escrow on account of continued occupancy shall be payable to the depositor, except that any funds deposited in escrow may be used, for the purpose of making such dwelling fit for human habitation and for the payment of utility services for which the landlord is obligated but which he refuses or is unable to pay. No tenant shall be evicted for any reason whatsoever while rent is deposited in escrow.
      Act of January 24, 1966, P.L. (1965) 1534, § 1, amended by the Act of June 11, 1968, P.L. 159, No. 89, § 2; 35 P.S. § 1700 1.

      . Klein v. Allegheny County Health Department, supra., interpreted the Rent Withholding Act to provide for as many six month withholding periods as are necessary until a dwelling is certified as fit for habitation. Thus, in the present case, after paying the funds in the escrow account to the landlord and then finding additional defects which made the premises unfit for habitation, the Health Department properly started a new six month period during which the tenants could pay rent into escrow.


author: JOHNSON, Judge: WIEAND, Judge,

text:
    446 A.2d 304
    COMMONWEALTH of Pennsylvania v. Wilbert H. BELLEMAN, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 24, 1981.
    Filed May 28, 1982.

      John D. Enck, Lebanon, for appellant.
    William L. Thurston, Assistant District Attorney, Lebanon, for Commonwealth, appellee.
    Before SPAETH, WIEAND and JOHNSON, JJ.
   JOHNSON, Judge:

This is an appeal from the denial of appellant’s Post Conviction Hearing Act [PCHA] petition. After a guilty plea, appellant was sentenced to imprisonment for one and a half to four years on a charge of escape and one to two years on a charge of indecent assault, the sentences to run concurrently. The charges arose out of an incident which occurred while appellant, a prisoner at the Lebanon County Prison, was temporarily away from a work detail engaged in menial tasks in Monument Park outside the prison grounds and within the City of Lebanon. He had sought and received permission to leave the park in order to use a men’s room at a nearby gasoline service station. According to appellant, the designated men’s room was out of order, so he proceeded further up the street to a pizza shop where he found another men’s room.

Instead of returning directly to the work detail in Monument Park, appellant made a detour, during which he indecently assaulted a woman in her back yard. The Lebanon County Prison officer in charge of the work detail was just starting to look for appellant when he came running up the street towards the work site. Appellant rejoined the work party which remained on the work site for another hour and a half before returning to the prison. The next morning appellant was charged with escape and indecent assault.

After the sentencing appellant filed no post-sentence motions. Subsequently, with the aid of new counsel, he filed a petition under the Post Conviction Hearing Act, alleging that the plea of guilty to the charge of escape was not voluntary. A hearing was held and the petition was dismissed. Appeal to this court from that dismissal was timely filed. Appellant’s appeal is based on the contentions (1) that his guilty plea to the escape charge was unlawfully induced by threats from the prison warden (who was related to the victim of the indecent assault); (2) that prior to the plea he was not advised by his counsel as to the elements of the crime of escape, nor as to any defenses he might have; (3) that at the guilty plea colloquy there was disagreement as to the factual basis for the charge, and again no discussion of the elements of the offense of escape; (4) that counsel did not advise him of the defects in the guilty plea colloquy. The latter three claims are embraced in a claim of ineffectiveness of counsel: that counsel was ineffective in not objecting to the defects and in not advising him of the defects.

The Commonwealth argues that these issues are waived because of appellant’s failure to move to withdraw his guilty plea or to file a direct appeal. The Commonwealth also argues that appellant has not shown extraordinary circumstances justifying this failure.

Under the PCHA, a petitioner may be eligible for relief if he can prove, inter alia, that his plea of guilty was unlawfully induced, and that the error asserted is not finally litigated or waived. 19 P.S. § 1180-3(c)(7), (d). Waiver occurs where a petitioner knowingly and understandingly fails to raise the issue at a time when he could have done so. 19 P.S. § 1180-4(b). The existence of extraordinary circumstances justifying the failure to raise the issue at the appropriate time counteracts the waiver. 19 P.S. § 1180-4(b)(2). It is settled law that ineffectiveness of counsel constitutes extraordinary circumstances and thus precludes a finding of waiver under the PCHA. Commonwealth v. Holmes, 468 Pa. 409, 364 A.2d 259 (1976); Commonwealth v. Peele, 291 Pa.Super. 84, 435 A.2d 231 (1981). Since three of the issues are raised in the context of a claim of ineffectiveness of counsel they are not waived. Furthermore, because we find that appellant’s guilty plea colloquy was defective and that he must therefore be allowed to withdraw the plea, we address neither the claim that the plea was unlawfully induced by threats (thus constituting “extraordinary circumstances”), nor either of the other two remaining claims.

It is the rule that defendants must be advised of the elements of the crime to which they are pleading guilty. See Pennsylvania Rule of Criminal Procedure 319, which provides that a judge shall not accept a plea of guilty unless he determines, after inquiry of the defendant on the record, that the plea is voluntarily and understandingly tendered. Pa.R.Crim.P. 319(a), (b)(2). Our supreme court has ruled that an adequate on-the-record colloquy must include a demonstration that the defendant understands the nature of the charges. Commonwealth v. Campbell, 451 Pa. 465, 304 A.2d 121 (1973). The court has also held that “for an examination to demonstrate a defendant’s understanding of the charge, the record must disclose that the elements of the crime or crimes charged were outlined in. understandable terms.” Commonwealth v. Ingram, 455 Pa. 198, 203-204, 316 A.2d 77, 80 (1974). In Commonwealth v. Hines, 496 Pa. 555, 437 A.2d 1180 (1981), our supreme court reversed the lower court’s denial of a PCHA petition and remanded the case for trial after concluding that the guilty plea colloquy demonstrated no factual basis for the guilty plea, and no basis to conclude that the defendant understood the nature and elements of the charges against him.

In the case now before us, the colloquy, which was conducted by the assistant district attorney, was as follows with respect to the charge of escape:

MR. LONG: Mr. Belleman, do you understand that you are charged with the offense of escape in that on or about May 3d of 1978, while undergoing imprisonment in the Lebanon County Prison after being sentenced by the Court on May 17th, 1977, to serve two and one-half years less one day to five years less two days on a charge of criminal conspiracy, burglary, attempted burglary and theft, and again on April 12th 1978, to serve one and one-half years to four years on charges of indecent assault and indecent exposure, to run concurrent with your prior sentence, after being granted permission by Sterling Clements, a prison guard, to go to the bathroom at Seventh and Lehman Streets while you were on work detail with the Lebanon County Prison, that you failed to return and that you left, you ran from Mr. Clements and did not come back to the prison? Is that what you did?
THE DEFENDANT: No.
MR. LONG: What did you do?
THE DEFENDANT: I went to the bathroom, like it says, but after I, I did, I went back to Mr. Clements at the park. And from there I was out there for about an hour, an hour and a half, and then we came back to jail.
MR. PARKER: You were given permission to go to the bathroom, and you went some place else other than the bathroom?
THE DEFENDANT: Yes.
MR. LONG: Where did you go other than the bathroom?
THE DEFENDANT: Just running around.
MR. LONG: Running around where?
THE DEFENDANT: Lebanon.
MR. LONG: Lebanon—
THE DEFENDANT: Around that area.
MR. LONG: So you were given permission to go to the bathroom and you were supposed to come right back, and you didn’t do that. You took off—
THE DEFENDANT: (Nods affirmatively.)
MR. LONG: —is that correct?
THE DEFENDANT: Yes.

The district attorney next discussed the elements of the indecent assault charge, and then told appellant what were the maximum sentences for the two crimes; he advised appellant of his right to trial by jury, to the presumption of innocence, to participate in the selection of the jurors, and of his right to testify or to remain silent; the prosecution also asked whether appellant understood the terms of the plea bargain. Next, the judge carefully advised appellant of his right to file post-sentence motions and to appeal thereafter, and asked him if he was satisfied with his counsel’s representation. Nowhere, however, do we see any description of the elements of the crime of escape.

In Commonwealth v. Sherard, 290 Pa.Super. 58, 434 A.2d 128 (1981), petition for allowance of appeal denied, November 3, 1981, a guilty plea colloquy was held not to be invalid where the lower court’s conversation with the defendant showed that the defendant knew that he was incarcerated, had left his legally permissive area and had entered a restricted one without authority or permission. This court was satisfied that the defendant was fully advised of and understood the nature of the charge and the requisite proof for conviction. In the instant appeal, we are not so satisfied.

In Commonwealth v. Schwartz, 251 Pa.Super. 36, 379 A.2d 319 (1977), the court’s statement to the defendant, prior to accepting a guilty plea, that his escape consisted of his failure to return to prison from a work release assignment, was held by this court to be an adequate explanation. In the case before us we do not even have that much, particularly in view of the fact that the factual basis asserted by the district attorney, i.e., that appellant did not come back to the prison, was disputed by appellant. Appellant did agree that he “took off” after going to the bathroom, but not that he failed to return. And nowhere is there an explanation of the elements of the offense of escape.

Later in the colloquy at the guilty plea the following interchange occurred:

THE COURT: The second issue would be the competency of your counsel. Now, you’ve talked with Mr. Parker before today on a number of occasions, have you not?
THE DEFENDANT: Yes.
THE COURT: He’s explained the nature of the elements to you and what possible defenses you have?
THE DEFENDANT: (Nods affirmatively.)

Although this segment of the colloquy may be relevant to the issue of the ineffectiveness of counsel in not having himself explained to the defendant what the charges were and what his defenses might be, we are not satisfied that this is an on-the-record demonstration that the defendant received and understood the elements of the crimes with which he was charged within the meaning of the Hines and Ingram cases.

Despite the careful manner in which the district attorney conducted the colloquy with respect to some of the mandatory requirements, the absence of any explanation of the elements of the crime of escape is a fatal defect to the guilty plea. Commonwealth v. Hines, supra; Commonwealth v. Ingram, supra, Commonwealth v. Bruno, 272 Pa.Super. 562, 416 A.2d 1039 (1979); Commonwealth v. Davis, 267 Pa.Super. 118, 406 A.2d 547 (1979).

Because of the defect, appellant’s guilty plea must be held to have been involuntary. See the Hines, Ingram, Bruno and Davis cases cited supra. In considering appellant’s claim of ineffectiveness of counsel we are guided by the standard set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

[0]ur 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 trial counsel’s decisions had any reasonable basis.

427 Pa. at 604-605, 235 A.2d at 352-53 (footnote omitted).

From the transcripts of the PCHA hearing as well as of the guilty plea colloquy we can discern no reasonable basis designed to effectuate his client’s interest in counsel’s failure to be certain that appellant understood to what he was pleading guilty with respect to the charge of escape. Nor can we conceive of any. Therefore we find that counsel was ineffective in not ensuring a knowing and understanding plea. Commonwealth v. Davis, supra.

The order is reversed and the case.is remanded for trial.

WIEAND, J., files a dissenting statement.

WIEAND, Judge,

dissenting:

I respectfully dissent. I would affirm the order dismissing appellant’s P.C.H.A. petition for reasons ably set forth in the opinion of the Honorable G. Thomas Gates for the court below.

      . Act of January 25, 1966, 1965 P.L. 1580, No. 554, § 1, repealed by the Act of April 28, 1978, P.L. 202, No. 53, § 2(a), effective June 27, 1980, as amended by the Act of June 26, 1980, P.L. 265, No. 77, § 2, which delayed repeal until June 27, 1981, as ñirther amended by the Act of June 26, 1981, P.L. 123, No. 41, § 1, which further delayed repeal until June 27, 1982; 19 P.S. §§ 1180-1 to 1180-14 (Pamp. 1981).

      . 18 Pa.C.S.A. § 5121(a) (Purdon 1973), which provides:
      (a) Escape.—A person commits an offense if he unlawfully removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period.

      . 18 Pa.C.S.A. § 3126.

      . See the Comment by the Criminal Procedural Rules Committee to Pa.R.Crim.P. 319, 42 Pa.C.S.A. (Pamp.1981).


author: MONTEMURO, Judge:

text:
    446 A.2d 308
    COMMONWEALTH of Pennsylvania v. Jerry CORBIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 30, 1981.
    Filed May 28, 1982.

      John M. Glace, Assistant Public Defender, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before BROSKY, WIEAND and MONTEMURO, JJ.
   MONTEMURO, Judge:

Appellant was convicted of burglary following a non-jury trial. Post-trial motions were denied and appellant was sentenced to a term of two (2) to five (5) years imprisonment. Appellant’s sole contention on this appeal is that the evidence was insufficient to sustain his conviction of burglary in that the Commonwealth failed to prove beyond a reasonable doubt that appellant was neither licensed nor privileged to enter the premises in question. For the reasons stated below, we affirm the judgment of sentence.

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

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

Under this section, a person who is licensed or privileged to enter the premises is not a burglar even though he intends to commit a crime therein. Commonwealth v. Knight, 276 Pa.Super. 348, 363, 419 A.2d 492, 499 (1980); Commonwealth v. Starkes, 268 Pa.Super. 108, 407 A.2d 853 (1979); Commonwealth v. Cost, 238 Pa.Super. 591, 362 A.2d 1027 (1976); Commonwealth v. Danzy, 234 Pa.Super. 633, 340 A.2d 494 (1975); see Jarvis, Pennsylvania Crimes Code and Criminal Law, Comments to § 3502; Annotation, 93 A.L.R.2d 531 (1964) (Consent). It was the Commonwealth’s burden in the instant case to prove beyond a reasonable doubt that appellant was not licensed or privileged to enter the building. Commonwealth v. Starkes, supra; Commonwealth v. Stanton, 239 Pa.Super. 47, 50, 362 A.2d 355, 357 (1976) reversed on other grounds, 479 Pa. 521, 388 A.2d 1053 (1978).

“In testing a sufficiency of evidence claim we first accept as true all the evidence upon which the finder of fact could properly have reached its verdict, and then, after giving the Commonwealth the benefit of all reasonable inferences arising from that evidence, we ask whether the evidence and the inferences arising from it are sufficient in law to prove beyond a reasonable doubt that defendant is guilty of the crimes which he has been convicted.” Commonwealth v. Steward, 263 Pa.Super. 191, 199, 397 A.2d 812, 815-816 (1979).

Viewed under this standard, the evidence was as follows:

The appellant was employed by Checker Enterprises, Inc., a provider of janitorial services, to clean various suites located within an office building. Since these services were performed after normal working hours appellant was given keys to the main building entrance as well as a master key for the offices. Appellant’s responsibilities included cleaning three or four hallways, restrooms in the hallways and several office suites. The normal working hours for cleaning purposes were anywhere from 5:00 p. m. through 9:00 p. m.

On July 31, 1979, the appellant, at about 5:00 p. m., drove to the office building and performed his usual janitorial duties. There was no evidence indicating the time appellant completed his work and left. However, between 10:00 p. m. and 11:00 p. m., appellant returned in a vehicle to the building with two companions. The driver of the car was told to park in the rear of the building, while the appellant and the other accomplice entered the premises through the front door. There being no evidence of a forced entry, it is apparent that the appellant gained entrance by using the keys entrusted to him by the janitorial service.

Some twenty (20) to thirty (30) minutes later, appellant and his friend exited the building, proceeded to the getaway car and loaded it up with two cassette players, two television sets, and a video recorder. The trio departed the scene of the crime and decided to hawk their wares on the “Hill.” Appellant and his companions managed to steal the two television sets. The evidence also showed the disappearance of various items from three of the office suites which appellant was assigned to clean.

Appellant argues here that the Commonwealth, instead of proving unlicensed or unprivileged entry, proved the opposite. Appellant bases this contention on the fact that he was given permanent possession of keys to the main entrance and office suites and that from this fact alone appellant’s entering the premises between 10:00 p. m. and 11:00 p. m. was privileged. Appellant maintains that there is no evidence to rebut this contention. We disagree.

The Crimes Code does not define the “license or privilege” language contained in Section § 3502(a) and prior cases have found the elements of license and privilege similar to the defense of consent, see Commonwealth v. Knight, supra, Commonwealth v. Starkes, supra. Since the effective date of Section § 3502(d) there have been no cases defining license or privilege, and this court has taken a case by case factual approach in applying the phrase. In Starkes, supra., this court relied upon factual circumstances in prior burglary cases illustrating unlicensed or unprivileged entry to conclude in that case that the evidence was insufficient to prove appellant’s entry unlawful. See Commonwealth v. Jacobs, 247 Pa.Super. 373, 372 A.2d 873 (1977) (entry without permission: into another’s apartment); Commonwealth v. Brosko, 243 Pa.Super. 312, 365 A.2d 867 (1976) (accused not licensed or privileged to enter a closed ARCO Station at 4:30 p. m.); Commonwealth v. Hunter, 234 Pa.Super. 267, 338 A.2d 623 (1975) (unauthorized entry by former employee through window of electronics plant); Commonwealth v. Atkins, 232 Pa.Super. 206, 335 A.2d 375 (1975) (accused unauthorized to enter fraternity house). We do not find the factual circumstances in these cases very helpful in deciding the matter as presented in this case and believe it is necessary to define the word privilege as used in Section 3502(a).

Pursuant to 1 Pa.C.S.A. § 1903 of the Statutory Construction Act, words and phrases are to be construed according to their commonplace meaning. Webster’s Third International Dictionary defines privilege as:

Privilege means “la: a right or imminity as a peculiar benefit, advantage or favor; special enjoyment of a good or exemption from an evil or burden; a peculiar or personal advantage or right esp. when enjoyed in derogation of common right: PREROGATIVE.”

While this definition provides some insight, we believe the Supreme Court of New Hampshire, interpreting an identical version of Pennsylvania’s burglary statute, has persuasively fleshed out the “common and approved usage” of the term. In State v. Thaxton, 120 N.H. 526, 527, 419 A.2d 392 393 (1980), the New Hampshire Supreme Court set forth the circumstances upon which a person would be deemed privileged:

“[A] person is privileged, within the meaning of a burglary statute, if he may naturally be expected to be on the premises often and in the natural course of his duties or habits. . . Further, a person who is privileged may still commit burglary if he would not reasonably be expected to be present ...” (Emphasis added).

We approve of the New Hampshire court’s definition of the term privilege and accordingly adopt that standard for purposes of resolving the issue presented in this case.

Appellant testified at trial that on the evening of July 31, 1979, he left his house around 5:00 p. m. to tend to his cleaning duties at the office building. Appellant further testified that “we cleaned them” and then went home. Although the Commonwealth did not produce sufficient evidence to establish that appellant was not privileged to be on the premises beyond 10 or 11 o’clock for purposes of performing his duties, we are satisfied that the evidence was sufficient to show that appellant’s privilege to enter the premises did not extend beyond the scope of his employment. Since appellant had completed his cleaning chores sometime after 5:00 p. m. and thereupon left the building, we find that there was no reason for appellant to return and therefore, his subsequent entry later that night was not privileged.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 311.

      . Section 1903 provides in pertinent part:
      (a) Words and phrases shall be construed according to rules of grammar and according to their common and approved usage; but technical words and phrases and such others as have acquired a perculiar and appropriate meaning or are defined in this part, shall be construed according to such peculiar and appropriate meaning or definition.

      . RSA 635:1 provides in
      I. A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied section thereof, with purpose to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.


author: POPOVICH, Judge:

text:
    446 A.2d 311
    COMMONWEALTH of Pennsylvania v. John Daniel REED, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 14, 1980.
    Filed May 28, 1982.

      Benjamin S. Blakley, III, Clearfield, for appellant.
    F. Cortez Bell, III, Assistant District Attorney, Clearfield, for Commonwealth, appellee.
    Before SPAETH, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

Appellant, John Reed, was charged with theft by unlawful taking, burglary, and receiving stolen property. After a jury trial, appellant was convicted of burglary. Post-verdict motions were denied, and appellant was sentenced to a term of imprisonment of not less than three nor more than seven years. He also was ordered to pay the costs of prosecution and to make restitution to the victim. This appeal followed.

In this appeal, appellant contends that a mistrial should have been granted when the prosecutor informed a witness in the presence of the jury, after having advised the witness of his constitutional right to remain silent, that no charges would be brought against the witness. We agree and reverse the judgment of sentence and grant appellant a new trial for the reasons herein stated.

The facts are these:

The testimony of Dennis Hughes was essential to the prosecution’s case. This witness implicated appellant and a co-defendant, Ron Orley, in securing and delivering a stove and refrigerator which eventually were sold to Mr. Hughes and which were stolen from a vacation home. Apparently, Dennis Hughes had testified at the preliminary hearing, and, according to appellant’s attorney, the witness had made incriminating statements which would tend to show that Dennis Hughes knew beforehand that the stove and refrigerator were stolen. The prosecutor disagreed with the attorney’s characterization of the witness’s testimony. The record sets forth the scenario of the trial in the following manner:

“MR. SEAMAN [The Prosecution]: Your Honor, the Commonwealth would call Mr. Dennis Hughes.
DENNIS JAMES HUGHES, having been duly sworn, was examined and testified as follows:
MR. LEES: Your Honor—
THE COURT: Will you pull the microphone in, please?
MR. LEES [Defense Counsel]: At this time we would request that this witness be instructed of his constitutional rights to remain silent. Contrary to the District Attorney’s statement to the jury, there were incriminating statements made by this individual during the Preliminary Hearing in regards to the items in question.
THE COURT: Very well. Mr. Hughes, are you—
MR. SEAMAN: Your Honor, I’d just like to clarify something. The statement by Mr. Lees that the statements made by this witness at the Preliminary Hearing were incriminating, I believe it’s a determination by Mr. Lees himself that they were incriminating; and it depends upon whose ears the statements fall whether or not they’re incriminating.
THE COURT: Mr. Hughes, are you represented by Counsel?
THE WITNESS: No, sir.'
THE COURT: Do you understand that there is at least a suggestion that your testimony may lead to incriminating statements by you?
THE WITNESS: I don’t really understand it.
THE COURT: Mr. Seaman, will you proceed to explain to the witness.
MR. SEAMAN: Mr. Hughes, you will be giving testimony about this case about your receipt and your receiving of the refrigerator and stove in question.
THE WITNESS: M-hm.
MR. SEAMAN: And at least Mr. Lees seems to feel that perhaps some of the statements that you might make in regards to this would incriminate you, would tend to show that you perhaps had some knowledge that they were stolen, do you understand that?
THE WITNESS: Yes.
MR. SEAMAN: And the Judge has the duty to instruct you, then, that you have a right to remain silent, that you do not have to make any statements which might incriminate you, do you understand that?
THE WITNESS: Yes.
MR. SEAMAN: Do you desire to go through with this and to testify?
THE WITNESS: Yes, I do.
MR. SEAMAN: And you do not have any representation, do you, any Counsel?
THE WITNESS: No, I don’t.
MR. SEAMAN: Do you have any desire that you be represented by anybody?
THE WITNESS: I don’t understand whether or not I need representing.
MR. SEAMAN: Well, that’s—I can’t tell you that. That’s up to you. If you believe that you need an attorney to represent you, to advise you what to say or not to say, then that’s your choice. Do you have any reservations about testifying?
THE WITNESS: No, I don’t.
MR. SEAMAN: Your Honor?
THE COURT: May I have Counsel?
(Whereupon, a brief discussion was held at sidebar off the record.)
MR. SEAMAN: Mr. Hughes, in the event that you should have any reservation about testifying, which you already stated you don’t, I can advise you at this time that based upon the investigation made by the police officers involved in this case and the investigation made by the District Attorney’s Office, that no charges would be brought against you as a result of your testimony today.
THE WITNESS: (Nods head in the affirmative.)
MR. LEES: At this point I object, Your Honor, and move for Mistrial. The District Attorney stated an opinion based on information he has received in the presence of the jury. I move that Mistrial be granted at this time.
THE COURT: It is denied. Proceed, please.
(Trial Transcript at 21-24).

The prosecution concedes that the “statement by the Commonwealth may have been improper.” Brief for the Prosecution at 6. However, the prosecution argues that “regardless of whether there was a grant of immunity or not, the witness would have testified as he subsequently did.” Brief for the Prosecution at 7. Even, however, if that were the case, the prosecutor’s actions deprived appellant of a fair trial.

We have said that the role of the prosecutor in representing the “Commonwealth in a criminal proceeding is unlike an ordinary party to an adversary proceeding.” Lewis v. Court of Common Pleas of Lebanon County, 436 Pa. 296, 300, 260 A.2d 184, 187 (1969). This deep rooted concept states that the

“ ‘district attorney, in his official capacity, exercises in a measure a judicial function .... [I]t is also incumbent on him to see that the Commonwealth’s case is fully and fairly presented.’ (Emphasis added.) Commonwealth v. Meyers, 290 Pa. 573, 580, 139 A. 374, 377 (1927).” Com monwealth v. Myers, 485 Pa. 519, 523, 403 A.2d 85, 86 (1979) (Emphasis added).

Thus, this Court has not approved of prosecutorial tactics which obstruct the “settled principle of law that the Commonwealth must try a case fairly. ...” Commonwealth v. Palermo, 368 Pa. 28, 32, 81 A.2d 540, 542 (1951).

In order to assess the propriety of the prosecutor’s conduct in the instant case, the standard to be applied in examining a promise of immunity to a crucial prosecution witness is whether “such promise or understanding [was] fully, fairly and honestly disclosed when it [came] into question at trial”. Commonwealth v. Kurtz, 219 Pa.Super. 1, 4, 280 A.2d 410, 411 (1971) (citations omitted). Accord Commonwealth v. Floyd, 259 Pa.Super. 552, 559, 393 A.2d 963, 967 (1978); Commonwealth v. Levenson, 282 Pa.Super. 406, 422 A.2d 1355, 1359 (1980). The rationale for requiring a full, fair, and honest disclosure of a promise or understanding of immunity is because a promise or understanding of immunity would have a “ ‘significant bearing on the witness’ motivation for testifying against appellant’. . . . ” Commonwealth v. Floyd, 259 Pa. Super, at 558-559, 393 A.2d at 967 (citations omitted).

In the instant case, the prosecution did not fairly disclose the promise or understanding of immunity because, when the matter came into question at trial, he improperly vouched for the credibility of the prosecution’s key witness.

It is well-settled that the prosecutor has a special obligation to avoid “improper suggestions, insinuations, and, especially, assertions of personal knowledge. . . . ” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). Such conduct is prohibited because “improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.” Id. (Emphasis added).

Generally speaking, it is improper for the prosecution to vouch for the credibility of a government witness. Vouching has been characterized in two categories: (1) when the prosecution places the prestige of the government behind the witness by personal assurances of the witness’s veracity; and (2) when the prosecution indicates that information which is not before the jury supports the witness’s testimony. See e.g., United States v. Winter, 663 F.2d 1120 (1st Cir. 1981); United States v. Roberts, 618 F.2d 530, 533 (9th Cir. 1980), on remand, 640 F.2d 225 (1981), cert. denied, 452 U.S. 942, 101 S.Ct. 3088, 69 L.Ed.2d 957 (1981).

The first type of vouching is more common and arises in situations where the jury is told either directly or indirectly of the prosecutor’s opinion about the veracity of certain testimony which has been presented to the jury. See e.g., Commonwealth v. Toth, 455 Pa. 154, 314 A.2d 275, 277 (1974) (where “[i]n effect, the jury was told no one believed McDonald’s [, a defense witness’s,] testimony was true, not even appellant’s counsel, and the natural conclusion the jury would draw from this was to disregard the testimony. Such conduct by a district attorney is improper and beyond the scope of fair play.”) (footnote omitted); Commonwealth v. Joyner, 469 Pa. 333, 339, 365 A.2d 1233, 1236 (1976); See also ABA Standards, The Prosecution Function and Defense Function § 5.8.

The second type of vouching (i.e., remarks that bolster a witnesses’s credibility by referring to matters outside the record) “may occur more subtly and is also more susceptible to abuse”. United States v. Roberts, 618 F.2d at 533. Accord United States v. Garza, 608 F.2d 659, 664 (5th Cir. 1979). In this connection, a federal circuit case, United States v. Roberts, supra, is instructive. In Roberts, a chief government witness testified under a plea agreement which was entered into before the trial. This agreement provided that the witness would lose the benefits under the agreement should the witness testify untruthfully. The agreement was introduced into evidence and also was referred to extensively by the prosecutor in closing argument. The jury was informed during the trial that the critical issue was whether the government’s witness or the defendant was telling the truth, that appellant could be expected to lie in order to save himself, and that the government’s witness would not lie because he feared that a state police officer would be monitoring his testimony. The Ninth Circuit Court of Appeals held that the prosecutor committed reversible error by using the detective’s presence to argue for the witness’s credibility. Id. at 532. The Roberts court said that the prosecutor’s remarks were fatal because “the remarks, fairly construed, were based on the District Attorney’s personal knowledge apart from, the evidence in the case and that the jury might have so understood them. Orebo v. United States, 293 F.2d 747, 749 (9th Cir. 1961) [, cert. denied 368 U.S. 958, 82 S.Ct. 402, 7 L.Ed.2d 389 (1962) ].” Id. at 533 -534. (Emphasis added). The principle enunciated in the Roberts case also is applicable here.

In the instant case, the prosecutor explained in detail that “based upon the investigation made by the police officers involved in this case and the investigation made by the District Attorney’s Office, I can advise you at this time . . . that no charges would be brought against [Dennis Hughes, the chief government witness,] as a result of [his] testimony today.” N.T. at 24. In effect, the prosecution’s remarks insinuated that the credibility of the witness had been checked by an investigation which had been conducted by the police officers involved in the case and by the District Attorney’s office after the preliminary hearing. Thus, these detailed remarks were improper since they “were based on the [prosecutor’s] personal knowledge” of facts which were not of record. United States v. Roberts, 619 F.2d at 533. As a result, the jury’s attention was diverted away from the issues at hand and toward collateral matters. In a subtle way, the prosecutor’s reference bolstered the witness’s credibility by implying that other evidence which was not of record could verify Hughes’ role in the criminal episode at trial. Thus, the statement impinged on the jury’s function of determining the guilt or innocence of the appellant based on the evidence produced.

The ABA Standards criticizes the tactics used by the prosecutor:

“5.9 Facts outside the record.
It is unprofessional conduct for the prosecutor intentionally to refer to or argue on the basis of facts outside the record whether at trial or on appeal, unless such facts are matters of common public knowledge based on ordinary human experience or matters of which the court may take judicial notice.” (emphasis added.)

Likewise, we cannot condone the prosecution’s reference which was “on the basis of facts outside the record”. Id.

Additionally, other factors have weighed in the balance of our decision today. They are: (1) the prosecution’s case against appellant depended heavily upon the credibility of the government witness, Dennis Hughes; and, (2) the trial was conducted before a jury.

First of all, according to the prosecution’s version of the facts, appellant and his co-defendant, Ron Orley, were involved in securing a stolen refrigerator and stove for Dennis Hughes from a vacation home in Clearfield County. The government witness testified that he did not know that the items were stolen; rather, he thought that they had belonged to appellant and his wife, who had “broken up”. N.T. 29. It was only until after the items were delivered, and after a police officer had approached Hughes about the appliances that the witness had any idea that the stove or refrigerator “could have been stolen”. N.T. 45. On the other hand, both the appellant and his co-defendant, Ron Orley, contended that they were innocent bystanders. Appellant, in an oral statement to the police, and his co-defendant also stated that either Hughes or a contracting associate had informed them where to pick up the stove and the refrigerator. There were no fingerprints linking appellant or his co-defendant to the scene of the crime. However, two checks totalling $175.00, issued by Dennis Hughes and made payable to Ron Orley, the co-defendant, were introduced into evidence at trial. In view of this evidence, it is not surprising that the case depended heavily upon the credibility of Dennis Hughes. See Berger v. United States, supra (where the case depended upon the testimony of one witness).

We also note that the problem of digression from the issues at hand is “particularly offensive in a jury trial.” ABA Standards, the Prosecution Function and Defense Function § 5.9, Commentary at 130. On this subject, our Supreme Court has said the following:

“It must be determined from all the circumstances whether a remark has a prejudicial effect; there is no fixed rule applicable in every case. An accepted guide in determining prejudicial effect is that, if the remark may be said with fair assurance to have had but a slight effect upon the jury, if any at all, and one is not left in doubt that it had no substantial influence in the case, it will not vitiate the otherwise fair trial. Commonwealth v. Phillips, [183 Pa.Super. 377, 382, 132 A.2d 733, 736 (1957)].” Commonwealth v. Davis, 497 Pa. 335, 342, 440 A.2d 1185, 1188 (1981).

The prosecution contends that “the granting of immunity to the witness in the presence of the jury had no effect whatsoever. It did not influence the witness in his decision to testify as that decision had already been made. Likewise it did not influence the jury with respect to their opinion of the witness’ testimony. If the grant of immunity had any impact at all on the jury, such would have been to make them more suspicious of what the witness said.” Brief for the Prosecution at 7. (Emphasis added). We are unable to agree with the prosecution since the prosecution’s remark gave bolstering details about a key prosecution witness who, after an investigation by the police and the District Attorney’s office, had the support of the prosecuting authorities. Thus, we cannot conclude on these facts that the prosecution’s conduct “had no substantial influence in the case.” Commonwealth v. Davis, 497 Pa. at 342, 440 A.2d at 1188.

Judgment of sentence is reversed, and appellant is granted a new trial.

JOHNSON, J., concurs in the result.

      . The ABA standards condemns such conduct:
      “5.8 Argument to the jury.
      (a) The prosecutor may argue all reasonable inferences from the evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw.
      (b) It is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.... ”

      . The prosecution also concedes that it “did not have the power to grant immunity.” Brief for the Prosecution; see Commonwealth v. Strickler, 481 Pa. 579, 393 A.2d 313 (1978). However, we need not address whether the prosecution had the authority to confer a grant of immunity in the presence of the jury because the conduct by the prosecutor was improper under the circumstances. See 42 Pa.C.S. § 5947 and United States v. Roberts, supra.