author: WIEAND, Judge:

text:
    516 A.2d 1263
    COMMONWEALTH of Pennsylvania, Appellee, v. Michael MILLER, Appellant.
    Superior Court of Pennsylvania.
    Argued May 29, 1986.
    Filed Nov. 5, 1986.

      Leonard N. Sosnov, Assistant Public Defender, Philadelphia, for appellant.
    Kathleen A. McDonnell, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before WIEAND, BECK and JOHNSON, JJ.
   WIEAND, Judge:

Having entered pleas of guilty to robbery and aggravated assault, Michael Miller was sentenced to serve concurrent terms of imprisonment for not less than six months nor more than twenty-three months and was placed on immediate parole. He was also sentenced to serve two probationary terms of five years each for unlawful restraint and possession of an instrument of crime. The probation was to commence upon completion of the sentences for robbery and assault and be consecutive thereto. While appellant was on parole but before the probationary period had commenced, he committed new offenses which included assault, recklessly endangering another person, possession of an instrument of crime and prostitution. Because of convictions on these new charges, Miller’s parole and probation were revoked. He was ordered to serve the balance of his sentence of imprisonment for robbery and assault and was sentenced to serve consecutively two terms of imprisonment for not less than two and one-half years nor more than five years on the convictions for unlawful restraint and possession of an instrument of crime. On appeal, Miller concedes that he violated his parole but contends that the court erred in revoking his probation and imposing a sentence of imprisonment in lieu thereof. He could not have violated his probation, he argues, because he was not on probation when the new offenses were committed. He also argues that the new sentence violated principles of double jeopardy. We reject appellant’s arguments and affirm the judgment of sentence.

Under similar circumstances, this Court held in Commonwealth v. Dickens, 327 Pa.Super. 147, 475 A.2d 141 (1984) that “[t]he fact that appellant had not commenced serving probation when the new offense occurred did not prevent the court from revoking its prior order placing appellant on probation.” Id., 327 Pa.Superior Ct. at 152, 475 A.2d at 144. The reason for the rule was explained in Commonwealth v. Wendowski, 278 Pa.Super. 453, 420 A.2d 628 (1980), where this Court said:

If, at any time before the defendant has completed the maximum period of probation, or before he has begun service of his probation, he should commit offenses of such nature as to demonstrate to the court that he is unworthy of probation and that the granting of the same would not be in subservience to the ends of justice and the best interests of the public, or the defendant, the court could revoke or change the order of probation. A defendant on probation has no contract with the court. He is still a person convicted of crime, and the expressed intent of the Court to have him under probation beginning at a future time does not “change his position from the possession of a privilege to the enjoyment of a right.” Burns v. United States, 287 U.S. 216, 222, 53 S.Ct. 154, 156, 77 L.Ed. 266, 269 (1932).

Id., 278 Pa.Superior Ct. at 456, 420 A.2d at 630 (emphasis in original), quoting James v. United States, 140 F.2d 392, 394 (5th Cir.1944) (Waller, J., concurring). See also: Commonwealth v. Vivian, 426 Pa. 192, 231 A.2d 301 (1967); United States ex rel. Sole v. Rundle, 435 F.2d 721 (3rd Cir.1971); Annot., 22 A.L.R. 4th 755 (1983).

Appellant argues that both Dickens and Wendowski were incorrectly decided and that they should be re-examined in light of 42 Pa.C.S. § 9771(d), which provides:

Hearing required — There shall be no revocation or increase of conditions of sentence under this section except after a hearing at which the court shall consider the record of the sentencing proceeding together with evidence of the conduct of the defendant while on probation. Probation may be eliminated or the term decreased without a hearing.

The purpose of this section of the statute is to require a hearing before a court revokes probation. It does not suggest that Dickens and Wendowski were incorrectly decided or that the holdings thereof should be overruled or modified. To suggest, as appellant does, that a defendant is free to commit unlimited additional crimes without in any way impairing or endangering a previously imposed sentence of probation merely because the probationary period has not commenced is to suggest an absurdity in the statute which this Court is not prepared to create. Indeed, such an interpretation would be contrary to the policy and the purposes to be served by probation. If a probationer’s criminal conduct, even if committed prior to commencement of the probationary period, discloses that probation will not be in the best interests of the public or the defendant, a court may revoke or change the order of probation. The commission of a new crime violates an implied condition of probation and suggests that the defendant is a poor probation risk. Commonwealth v. Mallon, 267 Pa.Super. 163, 167, 406 A.2d 569, 571 (1979).

We also reject appellant’s argument that to base a revocation of probation upon an act committed prior to commencement of the probationary period is to increase the period of a defendant’s probation in violation of principles of double jeopardy. A probationary sentence is not a right guaranteed by either federal or state constitutions; it is a privilege granted at the discretion of the sentencing court. See: United States ex rel. Sole v. Rundle, 435 F.2d 721, 723 (3rd Cir.1971). An order of probation is a conditional order and not a final order for double jeopardy purposes. Commonwealth v. White, 264 Pa.Super. 495, 500 n. 6, 400 A.2d 194, 196 n. 6 (1979). Upon revocation of probation a court possesses the same sentencing alternatives which it had at the time of initial sentencing. 42 Pa.C.S. § 9771(b).

The trial court’s order revoking Miller’s probation and imposing a sentence of imprisonment in this case was consistent with the law in this Commonwealth and did not violate constitutional principles of double jeopardy. See: Commonwealth v. Vivian, supra; Commonwealth v. Cole, 222 Pa.Super. 229, 294 A.2d 824 (1972).

The judgment of sentence, therefore, is affirmed.

      . Allocatur was denied on August 16, 1984.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    516 A.2d 1266
    COMMONWEALTH of Pennsylvania v. Darene Helen ROBBINS, Appellant.
    Superior Court of Pennsylvania.
    Argued June 19, 1986.
    Filed Nov. 5, 1986.

      Lawrence B. Fox, Bethlehem, for appellant.
    Michael Vedomsky, Assistant District Attorney, Easton, for Com., appellee.
    Before CIRILLO, President Judge, and CAVANAUGH and TAMILIA, JJ.
   TAMILIA, Judge:

This is an appeal from judgment of sentence entered after a jury convicted appellant of prostitution. A sentence of one year probation and a $750 fine was imposed. Appellant was charged under section (b) of Prostitution and related offenses, 18 Pa.C.S.A. § 5902, which states that it is an offense to “knowingly promote prostitution of another by owning, controlling, managing, supervising or otherwise keeping, alone or in association with another, a house of prostitution or a prostitution business....”

The jury found appellant in violation of this section for her co-owner status of the Body Clinic, an establishment where semi-nude female employees perform massages on nude male customers for a fee. The “massage” included masturbation of the genitalia.

On appeal, appellant contends, inter alia, that section 5902 of the Pennsylvania Crimes Code, 18 Pa.C.S.A. § 5902, Prostitution and related offenses, is unconstitutionally vague and thus, void. Specifically, it is alleged that the term “sexual activity” is inadequately defined. Section 5902 provides in pertinent part:

(a) Prostitution. — A person is guilty of prostitution; a misdemeanor of the third degree, if he or she:
(1) is an inmate of a house of prostitution or otherwise engages in sexual activity as a business; ... (Emphasis added)

Subsection (f) of section 5902 further defines sexual activity as “including] homosexual and other deviate sexual relations.” In essence, appellant asserts she had no notice and fair warning as required by due process that she was violating the law by allowing manual genital stimulation for the payment of money.

It is well settled that “[a] criminal statute must give reasonable notice of the conduct which it proscribes to a person charged with violating its interdiction. Statutes which are so vague that they fail to provide such notice violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution.” Commonwealth v. Heinbaugh, 467 Pa. 1, 5, 354 A.2d 244, 246 (1976). See also Commonwealth v. Barnhart, 345 Pa.Super. 10, 497 A.2d 616 (1985). A statute will be deemed violative of due process if the terms of the statute “... are so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application....” Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328 (1926); Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974). However, the constitutional prohibition against vagueness does not invalidate every statute which could have been drafted with greater precision. Due process requires only that the law give sufficient warning so that individuals may conform their conduct so as to avoid that which the law forbids. Rose v. Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975).

In addition to the aforementioned constitutional standards, this Court is mindful of the fact that “... a legislative enactment enjoys a presumption in favor of its constitutionality and will not be declared unconstitutional unless it clearly, palpably and plainly violates the constitution. All doubts are to be resolved in favor of constitutionality.” Parker v. Children’s Hospital of Philadelphia, 483 Pa. 106, 111, 394 A.2d 932, 937 (1978). See also Commonwealth v. Sterling, 344 Pa.Super. 269, 496 A.2d 789 (1985); Statutory Construction Act of December 6, 1972, P.L. 1339, § 3, 1 Pa.C.S.A. § 1922(3).

Our research has disclosed only two Pennsylvania cases which have examined the application of the prostitution statute to the activity of masturbation of a male by a nude or semi-nude female for hire. Both cases on point are decisions of the Pennsylvania Common Pleas Court. First, in Commonwealth v. Dougan, 5 D. & C.3d 406 (1978), the defendant, who had been charged with a violation of section 5902 for the masturbation of a male client for a fee at a “spa”, motioned to quash the complaint. The court granted defendant’s motion to quash on the basis that prostitution, as defined in section 5902(a), requires sexual activity involving at least some penetration. After reviewing the history of section 5902, the court opined that:

The sexual activity contemplated by prior legislation and the cases interpreting that legislation were confined to sexual intercourse. In the present act, the legislature clarified the prior law to include “homosexual and other deviate sexual relations.” In all of these activities there must be penetration however slight, before the act is committed....

Dougan, 5 D. & C.3d at 408. It is important to note, however, that the court in Dougan did not undertake a detailed constitutional analysis of the prostitution statute to determine whether the term “sexual activity” was unconstitutionally vague.

Conversely, Judge Wieand (now of this Court), while a Common Pleas Judge, in Commonwealth v. Israeloff 8 D. & C.3d 5 (1978), concluded that the prostitution statute as applied to a genital massage for money is not unconstitutionally vague.

Upon examination of the prostitution statute, in light of the aforementioned constitutional standards, the court concluded the statute does not fail for vagueness because:

In the mind of a man of “common intelligence” the term sexual activity clearly encompasses masturbation as a business. Indeed, as we have already observed, it is difficult to believe that any man of common intelligence would consider the massaging of the genitals of an unclothed man by a nude or partially nude female to be anything other than sexual activity.

Israeloff, 8 D. & C.3d at 11.

Although we are not bound by either of these decisions, we find the analysis in Israeloff to be a more accurate application of the constitutional standards concerning vagueness. While the court in Dougan traced the history of the term “prostitution” from its common law origin, the court in Israeloff examined the term “sexual activity” in light of a constitutional void-for-vagueness challenge. We believe there is no question that appellant had notice and fair warning, as required by due process, that she was violating the law by allowing manual sexual stimulation for the payment of money. This is clearly not a situation where the conduct prohibited is so intangible or vague as to require men of common intelligence to guess at its meaning and differ as to its application. Commonwealth v. Skufca, 457 Pa. 124, 321 A.2d 889 (1974).

The statute in question was enacted to provide an ascertainable standard of conduct directed at a defined evil; such evil being the commercial exploitation of sexual gratification. Commonwealth v. Potts, 314 Pa.Super. 256, 273, 460 A.2d 1127, 1136 (1983). Furthermore, since the term “sexual activity” is undefined by the statute, we are obliged to construe that term according to its common and approved usage. Barasch v. Pennsylvania Public Utility Com’n, 507 Pa. 430, 490 A.2d 806 (1985). See also Statutory Construction Act, 1 Pa.C.S.A. § 1903(a). When the term “sexual activity” is examined in light of the statute’s underlying purpose of prohibiting commercial exploitation of sexual gratification and also in light of its common and approved usage, there is no doubt that masturbation for hire falls within the statute’s proscription. Therefore, we find section 5902(a) is not unconstitutionally vague so as to cause appellant to seriously believe that she was not providing some form of sexual gratification for the payment of money.

Appellant’s second allegation of error is that the Commonwealth failed to present sufficient evidence to support her conviction. We hold that this issue has not been properly preserved for appeal since appellant’s post-verdict motion contains a mere boilerplate allegation of error in violation of Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1988). See also Commonwealth v. Martin, 346 Pa.Super. 129, 499 A.2d 344 (1985). Holmes requires that the post-verdict motion specify in what respects the evidence was insufficient. Appellant’s post-verdict motion, on the other hand, briefly states: “... insufficient evidence existed at time of trial upon which to predicate a finding of guilt.” This is not adequate to preserve the sufficiency of evidence issue for appellate review.

Appellant also alleges the lower court erred in introducing various receipts and marked cash into evidence which were seized by police during a search of the Body Clinic. Specifically, appellant claims the credit card slips, treatment contracts, accounting sheets and approximately $800 in cash were not relevant to the charges against her. We are in full agreement with the trial court’s conclusion that this evidence was “indeed relevant to the prostitution charges facing defendant in reference to proof of the ‘business’ element of ‘sexual activity as a business’, as defined in the Prostitution Statute.” (Slip Op. at p. 7). The evidence tended to prove that the services offered at the Body Clinic were provided in exchange for the payment of money, thus proving a required element of the offense.

Appellant also contends the court erred in instructing the jury that prostitution under the Crimes Code could consist of the massage of male genitals by a semi-nude female and in refusing to instruct the jury on appellant’s related points for charge. Since we have determined, as a matter of law, that the massage of the male genitals for the payment of money constituted a violation of section 5902 of the Crimes Code, it was not error to so instruct the jury at trial.

Appellant also alleges that the trial court erred in refusing to permit counsel for appellant to present certain specific questions during voir dire. The eight questions which were refused sought to elicit answers from the panel on their opinion of what they perceived the law of the Commonwealth of Pennsylvania to be in relation to prostitution. We first note that the scope of voir dire examination is within the sound discretion of the trial court and will not be disturbed on appeal absent palpable error. Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985); Commonwealth v. Merrick, 338 Pa.Super. 495, 488 A.2d 1 (1985). The sole purpose of voir dire is to provide the accused with a competent, fair, impartial and unprejudiced jury. Commonwealth v. Hamm, 325 Pa.Super. 401, 473 A.2d 128 (1984). The questions proposed by appellant attempted to question the panel on their interpretation of the law; it is the court’s function to instruct on the law and the questions were not relevant to the voir dire goal of providing the accused with a competent, fair, impartial and unprejudiced jury.

Appellant’s next allegation is that the district attorney committed reversible error during cross-examination of appellant by inferring that she maintained the burden of proof concerning the status of certain bank accounts. Specifically, appellant testified on cross-examination that her name was not on the Body Clinic account after July of 1984 since she had signed a card at the bank to remove her name from the account. The district attorney then asked her whether she had brought that card to court, to which appellant answered, no (T.T., 4/11/85, pp. 133-336). Appellant’s argument is meritless as the Commonwealth’s inquiry into the status of the bank account was entirely proper in attempting to refute facts raised by the appellant on direct examination.

Lastly, appellant contends the court erred in instructing the jury that it was not bound by the alleged date of criminal activity set forth in the information. The information lodged against appellant stated that “on (or about) August 9,1984,” the appellant did engage in sexual activity as a business. The jury, during its deliberation, transmitted a question concerning the date of the alleged criminal activity. The court then instructed the jury that,

The Commonwealth is not restricted to proof of the crime of the exact date stated in the information, so long as it can prove the commission of the crime on some fixed date with reasonable certainty and within the prescribed statutory period, which, in this case, is two years ...

(T.T., 4/11/85, p. 191). Counsel for appellant raised no objection at the time the answer was given to the jury. The Commonwealth did not attempt to prove that the criminal activity occurred at a time other than August 9, 1984 and evidence of appellant’s alleged ownership or management of the Body Clinic prior to August 9th was relevant to prove her continuing involvement on August 9, 1984, the date appellant’s two alleged employees were arrested for prostitution. Thus, the court’s instruction was proper.

Accordingly, judgment of sentence is affirmed.

Judgment of sentence affirmed.


author: DEL SOLE, Judge:

text:
    516 A.2d 1270
    COMMONWEALTH of Pennsylvania, Appellant, v. Christine MOWRY.
    Superior Court of Pennsylvania.
    Argued June 4, 1986.
    Filed Oct. 28, 1986.

      Ed Borkowski, Assistant District Attorney, Pittsburgh, for Com., appellant.

      Melaine S. Rothey, Assistant Public Defender, Pittsburgh, for appellee.
    Before ROWLEY, DEL SOLE, and CERCONE, JJ.
   DEL SOLE, Judge:

Appellee, Christine Mowry, was arrested October 26, 1983, and charged with Prostitution, a violation of 18 Pa. C.S. § 5902. Appellee filed a rule to show cause why the instant action should not be deferred to Accelerated Rehabilitative Disposition (ARD). Appellee alleged she had been excluded from consideration for ARD solely because this is a prostitution case. It was asserted that the policy of the district attorney in excluding prostitution cases discriminated against women because while the vast majority of drunk drivers, car thieves and shoplifters who are placed into ARD are male, the vast majority of prostitutes are female and the policy thus violates the equal protection clause of the fourteenth amendment to the United States Constitution. Additionally, it was contended that the blanket exclusion of prostitution cases from ARD consideration was not supported by a rational basis and therefore Appellee had been denied equal protection of the law.

Following argument, the court on March 8, 1984 ordered that Appellee be considered for admission into ARD. The Commonwealth filed a motion for reconsideration which was denied after argument and the district attorney was again directed to consider Appellee for admission into the ARD program. The Commonwealth considered Appellee for admission, noted she had three prior convictions for Obstructing Traffic, and again determined that this action should not be deferred to ARD. On October 25, 1984 the court, over objection by the Commonwealth, offered Appellee admission into ARD. Appellee accepted the offer and the court entered an order placing her in the program.

The Commonwealth filed an application for Extraordinary Relief to the Supreme Court of Pennsylvania and also filed an appeal to this Court. On June 26, 1985, 508 Pa. 197, 494 A.2d 1392, our Supreme Court granted the Commonwealth’s request for exercise of plenary jurisdiction and entered an order reversing the October 25, 1984 order of the trial court and remanding the matter to the trial court for proceedings consistent with Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985). On August 16, 1985, the appeal to this court was quashed in accordance with the Order of our Supreme Court.

On October 3, 1985 following hearing and argument, the trial court entered an order stating that the prior order of the court dated October 25, 1984, placing Appellee in the ARD program would remain in effect. The Commonwealth has appealed. Initially we note:

the decision to submit the case for ARD rests in the sound discretion of the district attorney, and absent an abuse of that discretion involving some criteria for admission to ARD wholly, patently and without doubt unrelated to the protection of society and/or the likelihood of a person’s success in rehabilitation, such as race, religion or other such obviously prohibited considerations, the attorney for the Commonwealth must be free to submit it for ARD consideration based on his view of what is most beneficial for society and the offender.

Commonwealth v. Lutz, 508 Pa. at 310, 495 A.2d at 935.

Further, “[bjecause ARD is a pre-trial disposition, its governance lies at the discretion of the district attorney, not that of the court.” Commonwealth v. Burdge, 345 Pa.Super. 187, 190, 497 A.2d 1367, 1368-69 (1985). The trial court found, “that in the instant case the District Attorney has indeed abused his discretion by rejecting the Defendant’s request to be admitted to the program on the basis of his policy not to accept prostitutes into ARD.” (Trial Court Opinion at 2). Clearly, “while the district attorney has sole discretion to move for a defendant’s admission into ARD, the prosecutor may not summarily reject a person from consideration for admission.” Commonwealth v. Kiehl, 353 Pa.Super. 353, 354, 509 A.2d 1313, 1313-14 (1986) (reversed and remanded for hearing to allow the district attorney to specify reasons for not submitting the case for ARD). However, the decision not to submit a specific class of offenders for ARD is not necessarily an abuse of discretion. In Commonwealth v. Roeder, 353 Pa.Super. 137, 509 A.2d 373 (1986), it was said:

[t]he district attorney is provided discretion in administering the A.R.D. program. See Pa.Rule of Crim.Pro. 175, 176. We cannot conclude that his policy of refusing to permit offenders with a prior felony record into the program is an abuse of discretion. This is so even though the felony conviction occurred thirteen years prior ...

Id., 353 Pa.Superior Ct. at 138, 509 A.2d at 373-374.

The trial court found that:

[t]o justify his policy of rejecting all persons charged with the crime of prostitution, the District Attorney alleges that prostitutes are professionals and they are like to recividate; that they are highly mobile individuals who are unreliable with respect to complying with the conditions of the ARD program; and, that they are often involved in organized crime.
We recognize that these considerations, in general, may be reasonable. However, in the instant case, we found them to be inapplicable.

(Trial Court Opinion at 3).

Having found that the district attorney’s considerations, in general, were reasonable, the trial court was no longer in a position to continue its inquiry. Whether the trial court would find a particular individual a likely candidate for ARD is simply not the question. At issue, is whether or not the district attorney abused his discretion. The court has failed to identify criteria relied upon by the Commonwealth “wholly, patently and without doubt unrelated to the protection of society and/or the likelihood of (appellees) success in rehabilitation, such as race, religion or other such obviously prohibited considerations ... Commonwealth v. Lutz, 508 Pa. at 310, 495 A.2d at 935.

The Order of the trial court entered October 3, 1985 is reversed. Jurisdiction relinquished.


author: BROSKY, Judge:

text:
    516 A.2d 1273
    COMMONWEALTH of Pennsylvania v. Donald HOLDEN, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 25, 1986.
    Filed Oct. 29, 1986.
    Richard A. Peterson, Greenville, for appellant.
    Charles S. Hersh, Assistant District Attorney, Hermitage, for Com., appellee.
    Before BROSKY, DEL SOLE and MONTGOMERY, JJ.
   BROSKY, Judge:

This appeal comes before us on submission from the judgment of sentence imposed after a jury conviction on the charges of resisting arrest, aggravated assault, simple assault and disorderly conduct. Based upon our reasoning below, we quash the appeal.

After denial of his post-verdict motions, appellant was sentenced on January 2, 1986, to a period of incarceration on the charge of aggravated assault of no less than eighteen months nor more than four years, plus payment of costs, and on the charge of disorderly conduct to a term of incarceration of not less than forty-five nor more than ninety days running concurrently with the sentence for aggravated assault, in addition to payment of costs.

On January 7, 1986, appellant filed a timely Motion to Modify his sentence. The trial court, by order dated the same day, set a hearing on appellant’s Motion to Modify for January 29, 1986. Appellant also filed a notice of appeal to this Court on the same day.

On January 29, 1986, the date set for hearing on appellant’s Motion to Modify, and within the thirty-day limitation period for action on sentence modification when a timely appeal from the original judgment of sentence is taken as prescribed by Pa.R.App.P. 1701(b), the trial court granted the Motion and rendered an amended judgment of sentence on the aggravated assault conviction, reducing appellant’s term of incarceration to a period of not less than six months nor more than two years. The sentence originally imposed on the disorderly conduct offense remained the same in the amended judgment, and appellant received a credit of twenty-eight days.

No new or amended notice of appeal was filed from the amended judgment of sentence of January 29, 1986.

We recently reaffirmed the common law rule that, absent statutory authority providing otherwise, a trial court is without jurisdiction to act in a matter after the record has been removed on appeal. Commonwealth v. Burkett, 352 Pa.Super. 350, 507 A.2d 1266 (1986). Pennsylvania Rule of Appellate Procedure 1701(a) similarly curtails the power of the trial court to act after an appeal has been taken. However, subsection (b) thereof contains exceptions to this limitation. Relevant portions of the exception controlling in this case read as follows:

(b) Authority of a trial court or agency after appeal. After an appeal is taken____ the trial court____ may:
(3) Grant reconsideration of the order which is the subject of the appeal or petition, if:
(i) an application for reconsideration of the order is filed in the trial court ... within the time provided or prescribed by law; and
(ii) an order expressly granting reconsideration of such prior order is filed in the trial court ... within the time prescribed by these rules for the filing of a notice of appeal ... with respect to such order, or within any shorter time provided or prescribed by law for the granting of reconsideration.
A timely order granting reconsideration under this paragraph shall render inoperative any such notice of appeal ... theretofore or thereafter filed or docketed with respect to the prior order.... Where a timely order of reconsideration is entered under this paragraph, the time for filing a notice of appeal ... begins to run anew after the entry of the decision on reconsideration, whether or not that decision amounts to reaffirmation of the prior determination of the trial court....

(Emphasis added).

To ascertain the purpose of the Supreme Court’s adoption of Rule 1701 and, in particular, subsection (b)(3), we turn for guidance to the explanation provided by its Advisory Committee on Appellate Court Rules:

Subdivision (b)(3) is intended to handle the troublesome question of the effect of application for reconsideration on the appeal process. The rule (1) permits the trial court ... to grant reconsideration if action is taken during the applicable appeal period, which is not intended to include the appeal period for cross appeals, or, during any shorter applicable reconsideration period under the practice below, and (2) eliminates the possibility that the power to grant reconsideration could be foreclosed by the taking of a “snap” appeal. The better procedure under this rule will be for a party seeking reconsideration to file an application for reconsideration below and a notice of appeal, etc. If the application lacks merit the trial court ____may deny the application by the entry of an order to that effect or by inaction. The prior appeal paper will remain in effect, and appeal will have been taken without the necessity to watch the calendar for the running of the appeal period. If the trial court ... fails to enter an order “expressly granting reconsideration” (an order that “all proceedings shall stay” will not suffice) within the time prescribed by these rules for seeking review,[] Subdivision (a) becomes applicable and the power of the trial court ... to act on the application for reconsideration is lost.

Particularly helpful to our determination to quash the appeal before us is the Comment to Pa.R.Crim.P. 1410 prepared by the Criminal Procedural Rules Committee as to the effect of the timely filing of a Motion to Modify upon an also timely perfected Notice of Appeal, in light of the provisions of Pa.R.App. 1701(b)(3).

Under this rule, the mere filing of a motion for modification of sentence and the court’s scheduling of a hearing on the motion do not affect the running of the thirty day period for filing a timely notice of appeal, [sic] and the need for the defendant to file his appeal (both as to the merits of the case or as to the sentence) within that period. However, if the court vacates the prior judgment of sentence, either in connection with granting the motion for modification or in order to have additional time within which to consider the motion, such action would have the same effect as an express order granting reconsideration under Pa.R.A.P. 1701. Accordingly, the vacation of sentence within the thirty day period for appeal will render any notice of appeal (either as to the merits of the case or the sentence) inoperative, and time for filing the notice of appeal will begin to run anew from the date of the decision on the motion, even if the decision ultimately amounts to a reimposition of the prior sentence.

(Emphasis supplied).

The Comment further explains the procedure to be followed by the trial court when a timely Motion to Modify has been filed and emphasizes the necessity for prompt action within the thirty-day appeal period.

Under present practice, the sentencing court is likely to have only thirty days from the imposition of sentence within which to act to modify the sentence. See Pa.R. A.P. 1701..... Therefore, upon the filing of a timely motion for modification of sentence, the court should take one of the following types of action within the thirty day appeal period: (1) issue an order denying the motion, (2) schedule a hearing on the motion, (3) issue an order granting the motion, and vacating the earlier judgment of sentence, or (4) if the court would like additional time to consider the motion, issue an order vacating the judgment of sentence. The failure of the sentencing court to act within the thirty day appeal period will normally result in the loss of the court’s jurisdiction to modify sentence, and will have the same effect as a denial of the motion. See Pa.R.A.P. 1701.

(Emphasis supplied).

The decisional law of this Commonwealth is in accord. Commonwealth v. Gordon, 329 Pa.Super. 42, 477 A.2d 1342 (1984); Commonwealth v. Leonard, 308 Pa.Super. 292, 454 A.2d 136 (1982); Commonwealth v. Lynch, 304 Pa.Super. 248, 450 A.2d 664 (1982); Commonwealth v. Corson, 298 Pa.Super. 51, 444 A.2d 170 (1982); Commonwealth v. Canady, 297 Pa.Super. 292, 443 A.2d 843 (1982).

Pennsylvania Rule of Appellate Procedure 1701(b) tolls the appeal period upon the grant of a Motion to reconsider or modify the judgment or order from which an appeal is taken, thereby rendering that appeal of no effect. We are not unmindful that Pa.S.Crim.P. 1410 imposes the additional requirement of vacating the original sentence within thirty days of its rendition in order to trigger the operation of Pa.R.App.P. 1701(b). Commonwealth v. Gordon, supra. However, given the time frame within which the entire post-sentencing proceeding occurred, we find that the instant case fell well within the prescription of the Rules.

We note, moreover, that while it may have been the better practice for the trial court, in its order of January 7, 1986, setting a hearing date on appellant’s Motion to Modify, to have inserted language expressly vacating the original judgment of sentence, a trial court does have the power, nonetheless, to vacate a sentence within thirty days of original judgment upon consideration of a timely filed Motion to reconsider or modify. Commonwealth v. Gordon, supra; Pa.R.App.P. 1701(b)(3); see Advisory Committee Comment to Pa.R.Crim.P. 1410, supra at p. 1275.

We hold, therefore, that the action of the trial court in granting appellant’s Motion to Modify on January 29, 1986, constituted a vacation of the original judgment of sentence of January 2, 1986, and rendered the Notice of Appeal filed January 7, 1986, a nullity, Commonwealth v. Wall, 321 Pa.Super. 152, 467 A.2d 1174 (1983) (grant of appellant’s motion by modifying original sentence constitutes vacation of original judgment of sentence and renders notice of appeal from original judgment inoperable) especially when, in the ensuing result, appellant received a reduction in his sentence on the aggravated assault charge. See also, Comment to Pa.R.Crim.P. 1410, supra at p. 1275.

Appeal quashed.

      . The trial court correctly observed at sentencing and in its opinion that the simple assault charge merged with that of aggravated assault. See Commonwealth v. Channell, 335 Pa.Super. 438, 484 A.2d 783 (1984).

      . In this regard, see the Judicial Code of Pennsylvania, 42 Pa.C.S.A. §§ 101 et. seq. Section 5505 thereof provides:
      § 5505. Modification of orders
      Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.

      . Pa.R.App.P. 903(a).

      . Rule 1410. Motion to Modify Sentence.
      A motion to modify sentence shall be in writing and shall be filed with the sentencing court within ten (10) days after imposition of sentence.

      . We cannot, we think, emphasize too strongly the necessity for timely action by the trial court in cases where a Motion to Modify and a Notice of Appeal are both filed within their respectively prescribed times. We cite these authorities to point out that because of the failure to dispose of the Motions to Modify, whether by grant, e.g., Commonwealth v. Gordon, supra; Commonwealth v. Canady, supra, or by denial, Commonwealth v. Lynch, supra, within the thirty-day period provided by Pa.R.App.P. 1701(b)(3), the trial courts there lacked jurisdiction to take any action beyond that period. Even vacation of the original sentence or the setting of a hearing on the Motion outside the thirty-day period was proscribed. Commonwealth v. Leonard, supra. The effect of any subsequently filed Notice of Appeal was consequently negated. The earlier timely notices of appeal from the original judgments of sentence were still operative. The impact of those cases was that appellants there were confined to presenting for review issues only relative to the propriety of their original sentences, in addition, of course, to matters bearing upon the validity of their underlying convictions.
      Thus, had the trial courts in the cases we cite acted in a timely fashion, the original notices of appeal would have been without effect, as is the situation in the instant appeal.

      . At this time, we are not inclined to grant appellant leave to file a notice of appeal nunc pro tunc, especially since the trial court granted modification, and the amended judgment reflects a reduced sentence on the charge of aggravated assault. To do otherwise would encourage parties coming before us to flaunt our rules which were designed to insure orderly and efficient administration of justice at the appellate level. We note, moreover, that appellant is not without recourse. He may pursue this remedy under the Post Conviction Hearing Act, 42 Pa.C.S.A. § 9541 et seq. on the basis that his counsel was ineffective in failing to file a Notice of Appeal from the amended judgment of sentence of January 29, 1986. However, because this matter is not now before us, we do not speculate on appellant’s chances of success in that regard.


author: WATKINS, Judge: BECK, Judge,

text:
    516 A.2d 1386
    COMMONWEALTH of Pennsylvania v. Pamela A. FAVINGER, Appellant.
    Superior Court of Pennsylvania.
    Argued June 25, 1986.
    Filed Nov. 5, 1986.

      Joshua D. Lock, Harrisburg, for appellant.
    John D. Flinchbaugh, Assistant District Attorney, York, for Com., appellee.
    Before WIEAND, BECK and WATKINS, JJ.
   WATKINS, Judge:

This is an appeal from the judgment of sentence and denial of a motion for new trial based on after-discovered evidence entered by the Court of Common Pleas of York County. Appellant was charged with two counts each of Theft by Deception, 18 Pa.C.S.A. § 3922, and Theft by Failure to Make Required Disposition of Funds, 18 Pa.C. S.A. § 3927. She was found guilty of all charges by a jury on July 18, 1984. Post-verdict motions were filed and denied. A timely appeal was filed with this Court but was subsequently dismissed without prejudice in order to allow appellant to pursue a motion for new trial based on after-discovered evidence. The motion was denied January 3, 1986.

Despite having made payment by check to Fairview Township for sewer and refuse bills in early 1983, many township residents did not receive cancelled checks from their banks. When, in April and May, 1983, these residents repeatedly contacted the township to inquire about the matter, the township felt it necessary to determine the cause since some deposits obviously were not being made. Appellant, who was the township bookkeeper, was asked about the problem and, eventually, appellant and other township employees conducted a search of appellant’s office in order to locate a particular deposit slip. The search was fruitless and appellant’s employment was terminated shortly thereafter.

In order to determine what had happened to the missing checks, the township had its sewer and refuse accounts audited. The audit disclosed a scheme to steal money from the township. Payments of cash to the township had been stolen and the theft was obfuscated by the substitution of subsequently received checks at the time of deposit. In this manner, the bank deposit slips always showed that the proper gross amount had been deposited. Checks from later days’ receipts would then be substituted for the checks used to replace the stolen cash and on and on. In order to insure the availability of a sufficient number of checks with which to maintain this scheme, bank deposits were, occasionally, not made at all. In this manner, a total of $1769.52 in cash and 289 checks totally $17,910.63 were stolen from the township.

On March 7, 1985, nearly a year after appellant’s conviction, a bank deposit bag containing 288 of the stolen checks was found by a township employee in a large cabinet which, at the time of the theft, had been located in appellant’s office. Based upon this discovery, appellant filed a motion for new trial based on after-discovered evidence with the lower court. The motion was denied.

Appellant’s first argument is that the evidence presented at trial was insufficient as a matter of law to sustain the verdicts of guilty since the evidence established that she had no more than joint access to and control over the stolen funds.

In reviewing the sufficiency of the evidence, we must view the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth, as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt.

Commonwealth v. Taylor, 324 Pa.Superior Ct. 420, 424, 471 A.2d 1228, 1229 (1984). Although a conviction must be based on more than mere suspicion or conjecture, the Commonwealth need not establish guilt to a mathematical certainty. It is sufficient if the circumstances are consistent with criminal activity even though they might likewise be consistent with innocent behavior. Commonwealth v. Herman, 227 Pa.Superior Ct. 326, 323 A.2d 228 (1974). Furthermore, a criminal conviction may be based on purely circumstantial evidence. Commonwealth v. Sadusky, 484 Pa. 388, 399 A.2d 347 (1979).

Our review of the record leads us to conclude that the evidence presented was sufficient to establish the criminal activity of appellant beyond a reasonable doubt. Although it is true that appellant was not the only person who had access to and control over the funds when they were received by the township, the evidence established that she had exclusive control over the funds between the time of removal from the cash register and deposit in the bank. The evidence also established that appellant did not always deposit the funds in the bank immediately after removal from the cash register. Rather, she often kept the funds in her desk drawer for several days before making a deposit. There were also occasions on which she took the funds home with her, ostensibly to deposit them on the way to work in the morning.

In this case, each person who had access to or control over the funds upon receipt testified as a witness. In a criminal prosecution, it is within the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. Commonwealth v. Croll, 331 Pa.Superior Ct. 107, 480 A.2d 266 (1984). The finder of fact is free to believe all, part or none of the evidence. Croll, supra. The jury resolved the credibility issues against appellant. This resolution of the credibility, together with noncontested factual matters, supports the determination made by the jury of appellant’s guilt beyond a reasonable doubt.

Appellant’s next argument is that the evidence was insufficient as a matter of law to sustain the verdicts of guilty because no evidence was presented indicating that the checks had value and, as such, that they constituted “property” within the prohibition of Sections 3927 and 3922 of the Crimes Code. “Property” is defined in Section 3901 of the Crimes Code, 18 Pa.C.S.A. § 3901, as:

“Anything of value, including real estate, tangible and intangible property, contract rights choses inaction and other interests in or claims to wealth, admission or transportation tickets, captured or domestic animals, food and drink, electric or other power.”

Section 3903 of the Crimes Code, 18 Pa.C.S.A. § 3903, which addresses the grading of theft offenses, provides, in pertinent part:

The value of an instrument constituting an evidence of debt, such as a check, draft or promissory note, shall be deemed the amount due or collectible thereon or thereby, such figure ordinarily being the face amount of the indebtedness less any portion thereof which has been satisfied.

18 Pa.C.S.A. § 3903(c)(2)(i).

Clearly, to constitute the subject matter of a theft, an item must have value. Although appellant contends that checks, which are provided by banks without charge, are without value and do not contitute “property” within the meaning of Section 3901, we find that her argument is without merit. The checks involved here were not blank checks, but checks which had the amount to be received filled in and were signed by the maker. The above-cited statutory provisions, particularly Section 3903(c)(2)(i), make clear that checks do have value and, as such, constitute “property” within the meaning of the Crimes Code.

Appellant’s next contention is that the Commonwealth’s failure to provide potentially exculpatory material violated Pa.R.Crim.Pro. No. 305. Rule 305 requires the Commonwealth, upon request, to provide the defense with any evidence favorable to the accused which is material either to guilt or to punishment which is within the possession or control of the attorney for the Commonwealth. Before trial, appellant requested the Commonwealth to produce any evidence which was exculpatory or “arguably favorable” to the defense. There is no dispute that the Commonwealth did provide the defense with all information used and compiled by the township auditors during the audit of the sewer and refuse account. At no time, either before or during trial, did appellant request the Commonwealth to provide the control cards which she now argues are potentially exculpatory. Absent such a specific request, a prosecutor has the duty to make available to the defense evidence that is truly exculpatory, rather than merely favorable or “arguably favorable”. Commonwealth v. Gee, 467 Pa. 123, 354 A.2d 875 (1976). A piece of evidence cannot be said to be exculpatory, or potentially exculpatory, merely because the defense chooses to call it so. Under the circumstances we perceive no violation by the Commonwealth of Rule 305.

Appellant’s final argument is that the post-trial discovery of checks which constituted a substantial portion of the corpus of the crimes was sufficient to compel the award of a new trial. After-discovered evidence will justify the award of a new trial if it: “... (1) has been discovered after the trial and could not have been obtained at or prior to the conclusion of the trial by the exercise of reasonable diligence: (2) is not merely corroborative or cumulative; (3) will not be used solely for impeaching credibility of a witness; and (4) is of such nature and character that a different verdict will likely result if a new trial is granted.” Commonwealth v. Mosteller, 446 Pa. 83, 88, 284 A.2d 786, 788 (1971).

A review of the record establishes that appellant has not fulfilled all of the components necessary to justify the award of a new trial. The testimony at the hearing on appellant’s motion established that the bank bag containing the stolen checks also contained slips of paper. The slips of paper had notations in appellant’s handwriting, for “number one”, “number two”, “refuse”, and “me”. These notations purportedly accounted for the funds to be placed in each account and those funds which appellant had taken. In light of those notations on the slips of paper recovered with the checks, it is highly unlikely that a different verdict would result if a new trial were granted. Therefore, the lower court properly denied appellant’s motion for new trial based on after-discovered evidence.

Judgment of sentence affirmed.

WIEAND, J., concurs in the result.

BECK, J., files a dissenting opinion.

BECK, Judge,

dissenting:

I respectfully dissent. I disagree with the majority’s conclusion that the Commonwealth did not violate Rule 305(B).

Appellant argues that the Commonwealth violated the Rule by not supplying her with the control cards on which sewer and refuse bill receipts were initially noted. The Commonwealth has a duty to provide evidence that is truly exculpatory. Commonwealth v. Gee, 467 Pa. 123, 354 A.2d 875 (1976). Exculpatory evidence is that which extrinsically tends to establish innocence of the crimes charged. Id.

The control cards consisted of a master account card, on which the totals of a day’s receipts were entered, and individual account cards maintained for each customer. The sewer and refuse accounts manager initially received the payments and made the appropriate entries on these cards before directing appellant to remove the cash and checks from the register and to deposit the money with the bank. It was appellant’s contention at trial that the sewer and refuse accounts manager was responsible for the thefts. If this were true, a discrepancy would have existed in the master account and the total of the individual account cards. The amount on the master account card would have been less than the total of the individual cards since subsequently received checks would have been entered accurately on the individual account cards (to avoid improper billings), but not on the master account card. Thus, this evidence tends to establish appellant’s innocence. As such, the Commonwealth had a duty to provide this evidence to appellant after her discovery request was made. The remedy for the Commonwealth’s breach of this duty is a new trial.

Accordingly, I disagree with the majority’s conclusion that appellant had specifically to request this evidence. The evidence is truly exculpatory and the Commonwealth was therefore obligated to make this evidence available after appellant’s request.


author: HESTER, Judge:

text:
    517 A.2d 189
    COMMONWEALTH of Pennsylvania v. Scott C. HAGERMAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 14, 1986.
    Filed Sept. 15, 1986.
    Reargument Denied Nov. 10, 1986.

      Samuel K. Gates, York, for appellant.

      Gary E. Hartman, District Attorney, Gettysburg, for Com., appellee.
    Before WATKINS, HOFFMAN and HESTER, JJ.
   HESTER, Judge:

This is an appeal from the judgment of sentence entered upon appellant’s conviction of driving under the influence (“DUI”) following a jury trial. Appellant argues that the refiling of charges, after the initial charges were dismissed at his first preliminary hearing, violated the holding of Commonwealth v. Hatcher, 345 Pa.Super. 481, 498 A.2d 925 (1985), and requires dismissal of the charges against him. We agree that there might have been a violation of Hatcher, and remand the case for further proceedings due to the fact that the record is incomplete.

On February 20, 1985, appellant was arrested by McSherrystown Borough police and charged with DUI. The initial complaint was filed on February 21, 1985. A preliminary hearing was held on March 18, 1985, and the charges were dismissed. The DUI charges were refiled on March 20, 1985. At the second preliminary hearing, the charges were waived into court. At appellant’s formal arraignment, he pleaded not guilty and requested a jury trial.

The case was called for trial, a jury was selected and appellant orally moved to have his charges dismissed pursuant to Pa.R.Crim.P. 130. The motion was denied and trial was held on August 23, 1985. The jury returned a verdict of guilty. Post-trial motions were filed and denied. On February 12, 1986, appellant was sentenced.

Appellant argues that the procedure followed in his case violates the holding in Commonwealth v. Hatcher, supra. Hatcher was arrested without a warrant for DUI, released pursuant to Pa.R.Crim.P. 130(b), and a complaint was issued within five days pursuant to Rule 130(d). At Hatcher’s preliminary hearing, the magistrate dismissed the charges due to the Commonwealth’s failure to establish a prima facie case. The arresting officer failed to identify Hatcher as the operator of the vehicle. Eight days later, the Commonwealth filed a second complaint upon which Hatcher was convicted of DUI. On appeal, we held that “the dismissal of charges at a preliminary hearing precludes rearrest and subsequent prosecution when the second arrest occurs after the five day period for filing charges pursuant to Rule 130(d) ... pertaining to arrest without warrant.” Hatcher, supra, 345 Pa.Superior Ct. at 484, 498 A.2d at 927. Appellant argues that this holding controls his case.

The trial court and the Commonwealth correctly note the general rule that, barring misconduct by the Commonwealth, dismissal of charges at a preliminary hearing does not end the case but may be followed by the filing of a second complaint based on the same criminal episode. Commonwealth v. Genovese, 493 Pa. 65, 425 A.2d 367 (1981); Commonwealth v. Cartagena, 482 Pa. 6, 393 A.2d 350 (1978); Commonwealth v. Hetherington, 460 Pa. 17, 331 A.2d 205 (1975). Applying this rule, the Commonwealth would distinguish Hatcher, supra, on the basis that Hatch-er’s second complaint issued more than five days after the first complaint was dismissed, whereas appellant’s second complaint issued within five days of dismissal of the first complaint. We cannot accept such a reading of Hatcher.

In the first place, Rule 130(d) requires that a complaint be filed within five days of release pursuant to Rule 130(b). Rule 130(b) and (d) read as follows:

(b) When a defendant has been arrested without a warrant for driving under the influence of alcohol or controlled substances, the arresting officer may, when he deems it appropriate, promptly release the defendant from custody rather than taking him before the issuing authority.
(d) When a defendant is released pursuant to paragraph (b) ..., a complaint shall be filed against the defendant within five (5) days of the defendant’s release. Thereafter, a summons, not a warrant of arrest, shall be issued and the case shall proceed as provided in Rule 110.

Rule 130(d) thus requires that a complaint issue within five days of a defendant’s arrest without a warrant for DUI and his release pursuant to subsection (b); Rule 130(d) does not suggest that a complaint may issue within five days of a defendant’s release due to dismissal of DUI charges at a preliminary hearing, which usually occurs many weeks after arrest and release pursuant to Rule 130(b).

In the second place, a careful reading of Hatcher compels the conclusion that a supportable complaint must be filed within five days of a DUI arrest. We stated in Hatcher:

In view of the foregoing it is clear that Rule 130(d) requires strict compliance. A careful review of the record has not revealed any plausible explanation for the Commonwealth’s error in failing to establish a prima facie case against appellant at the first preliminary hearing. Our decision today again emphasizes an individual’s right to be free from unreasonable delays in the criminal process. We can foresee situations where the Commonwealth could repeatedly refile charges against a defendant if it erred in establishing its case at preliminary hearings. Rule 130(d) establishes a time limit within which the Commonwealth must file supportable charges in a D. U.I. case where the defendant is released from custody before the charges are filed.

Hatcher, supra 345 Pa.Super. at 486-87, 498 A.2d at 928 (emphasis added.) If, due to the Commonwealth’s dereliction, charges are dismissed at the preliminary hearing, it will be far too late to comply with the five-day requirement of Rule 130(d). Rule 130(d) simply does not contemplate the filing of a new complaint within five days of a preliminary hearing in which the initial complaint was dismissed due to the Commonwealth’s unexplained failure to establish a prima facie case. The opinion in Hatcher makes this clear.

Commonwealth v. Genovese, Commonwealth v. Cartagena, and Commonwealth v. Hetherington, supra, permitting the refiling of a complaint following dismissal of the initial complaint at a preliminary hearing, involved offenses which were not subject to Rule 130(d). The only time constraints involved in those cases were statutes of limitation — no law or rule of court required an earlier filing of a complaint. Those cases held that failure to establish a prima facie case at a preliminary hearing is not a final determination such as an acquittal, and leaves the defendant subject to rearrest; they did not address the timeliness of the second complaint under Rule 130(d) or any similar rule.

Indeed, the language of the Supreme Court of Pennsylvania in Commonwealth v. Genovese, supra, strongly supports, our conclusion. The court stated:

Here, once the first complaint was dismissed, it became a nullity for all purposes, including Rule 1100. As in Cartagena, supra, “the second complaint... was the one which commenced this prosecution,” 482 Pa. at 19, [393] A.2d at 357, and there is no evidence of a prosecutorial plan to avoid the mandate of the Rule. It follows, therefore, that the 180 day period must commence from the filing of the second complaint.

Genovese, supra 493 Pa. at 71, 425 A.2d at 370-71 (emphasis in original). If, upon dismissal, the first complaint against appellant became a nullity for all purposes, we fail to perceive how its dismissal could operate to revive a five-day filing period which commenced with his arrest

We therefore hold that, if dismissal of the first complaint against appellant was due to lack of due diligence by the Commonwealth, the filing of a 'second complaint, even within five days of the preliminary hearing, was a violation of Rule 130(d), for it did not occur within five days of appellant’s release pursuant to Rule 130(b). It follows that any proceedings on the second complaint would be invalid.

Regrettably, there is nothing in the record which indicates the reason for dismissal of the charges against appellant at his first preliminary hearing on March 18,1985. As the record is incomplete, we must remand for a determination of the reason for the dismissal of the charges. Both Hatcher, supra 345 Pa.Super. at 486, 498 A.2d at 928, and Commonwealth v. Revtai, 343 Pa.Super. 149, 153, 494 A.2d 399, 401 (1985), would have permitted refiling of charges if the Commonwealth presented a justifiable excuse for exceeding the five-day requirement of Rule 130. On remand, the Commonwealth will bear the burden of justifying its failure to establish a prima facie case against appellant at the first preliminary hearing. Hatcher, supra 345 Pa.Super. at 486, 498 A.2d at 928; Revtai, supra 343 Pa.Super. at 153, 494 A.2d at 401. If the Commonwealth fails to establish a plausible explanation for dismissal of the charges at the first preliminary hearing, judgment of sentence is to be vacated and appellant discharged. Hatcher, supra 345 Pa.Super. at 486, 498 A.2d at 928. If the Commonwealth establishes that dismissal of the first complaint was not due to its own dereliction, judgment of sentence will stand. Jurisdiction is relinquished.


author: WATKINS, Judge:

text:
    517 A.2d 192
    COMMONWEALTH of Pennsylvania v. Daniel Mark HOWARD, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 24, 1986.
    Filed Nov. 5, 1986.

      Spero T. Lappas, Harrisburg, for appellant.
    William A. Behe, Chief Deputy District Attorney, Harrisburg, for Com., appellee.
    Before WIEAND, BECK and WATKINS, JJ.
   WATKINS, Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas of Dauphin County. On April 19, 1984, 21-year-old Tammy Lynn Howard was found stabbed to death in the second-floor bedroom of her home in Lower Swatara Township, Dauphin County. On April 24, 1985, a jury found appellant, her husband, guilty of first degree murder in connection with the homicide, but was unable to reach a verdict in the penalty phase of the proceedings. Appellant was sentenced to life imprisonment in accordance with the provisions of 42 Pa.C.S.A. § 9711(c)(l)(v) (Purdon 1985 supp.). Post-verdict motions were filed and denied, resulting in this appeal.

Appellant and the victim were married on May 15, 1982, and their son was born on December 31, 1983. Appellant was an assistant warehouse manager at a sporting goods wholesaler and the victim worked for ITT. Shortly after the birth of their son, appellant began working an evening shift, which was apparently a source of friction in the marriage. In early April, 1984, appellant approached 19-year-old Robert Bittinger, a temporary employee of the wholesaler, and asked him if he knew anyone who could kill a person for him. After continued discussions, Bittinger agreed to commit the murder in return for $500.00 cash, weapons from the warehouse, and a full-time job. Initially, Bittinger was unaware of the identity of the intended victim, but appellant eventually told him that the victim was to be his wife.

On the morning of April 18, 1984, Bittinger went to appellant’s home. Appellant was there, as were his son and Vicki Snyder, a temporary employee of the warehouse with whom appellant was having an affair. At that time, Bittinger and appellant discussed how the crime was to be committed and that it had to take place that night.

At 9:30 P.M. on April 18, 1984, appellant told Bittinger that he should leave work and accomplish the task. Appellant gave Bittinger the key to his front door. Bittinger retrieved his coat, motorcycle helmet, gloves and boot knife. He told a co-worker that he was going to see his girlfriend who had hurt her leg. He left work without punching out.

Upon arriving at appellant’s residence, Bittinger used the key to open the front door and entered the house. He went up to the bedroom, opened the door, walked in, and saw that appellant’s wife was on the right side of the bed as appellant had said she would. He turned on the light and appellant’s wife jumped up. Bittinger told her that Danny had sent him to get something, but he could not remember what it was. She asked how he got in and he said appellant had given him his key. When the victim tried to phone appellant, Bittinger made her hang up. Bittinger bound her hands, tied her legs, and gagged her mouth. He removed the paper money from the baby’s bank, took a cameo ring and buck knife from a dresser drawer and then started stabbing appellant’s wife and slit her throat. He did not ransack the house as planned, nor did he rape appellant’s wife. He did slit the back of her underwear to make it look as if she had been sexually assaulted.

Bittinger returned to work and told appellant it had been “taken care of”. After work, appellant went home to the scene of the murder. At approximately 12:30 A.M. on the morning of April 19, two police officers from the Lower Swatara Police Department, after receiving a call that there had been a murder, proceeded to appellant’s address. When they arrived, appellant was sitting on the sofa, smoking a cigarette and watching television. He told them that his wife, was upstairs in the bedroom. The officers went upstairs where they found the bedroom in a state of disarray, with dresser drawers open to about the same width, a lamp knocked over, and an open cigar box on the floor. Lying on the floor at the foot of the bed was the appellant’s wife.

The investigation immediately centered upon Bittinger because police learned that he had left work that night and his alibis proved to be false. Their attention was eventually drawn to appellant because he gave several inconsistent, increasingly incriminating statements to police during the course of the investigation. In his initial interview with police on April 19, 1984, appellant told them he had no idea who had killed his wife. On September 5, 1984, he told police he had once asked Bittinger to scare his wife so she would not leave him. On September 18, 1984, he told police he asked Bittinger to scare her, slap her around a little bit, but not to hurt her. When Bittinger returned to work on the night of the murder with blood on his sleeve, it did not occur to appellant that something had happened to his wife. On September 19, the appellant told police that he did not know where Bittinger had gone when he left work on the night of the murder, but after he failed to return within fifteen minutes, he was almost sure what Bittinger was doing. On October 1, 1984, appellant admitted that he had given Bittinger his house key on the night of the murder. On October 10, appellant told the police that he and Bittinger had discussed murdering appellant’s wife, but when he gave Bittinger the key on the night of the murder, he told him to “just teach her a lesson”. Appellant was arrested for the murder of his wife on October 11, 1984.

Appellant argues that the trial court erred in denying his motion to vacate the plea of Robert Bittinger and exclude Bittinger’s testimony at his trial. Before appellant's trial, Bittinger admitted his responsibility for killing appellant’s wife by pleading guilty to first degree murder and criminal conspiracy. In exchange for his truthful testimony against the appellant, the Commonwealth agreed not to seek the death penalty for Bittinger’s acknowledged guilt as a hired killer. Appellant argues that the plea bargain was illegal and, therefore, Bittinger’s testimony should have been excluded.

Daniel Mark Howard, the appellant in this case, has no standing to challenge the plea of guilty entered by Robert Bittinger. If the agreement were in violation of the provisions of § 9711 of the Sentencing Code, 42 Pa.C.S. § 9711 as appellant contends, the right to complain of such is singularly Bittinger’s. The appellant cannot prevent Bittinger’s testimony from being introduced against him unless some recognized constitutional right of Howard’s has been violated. After the jury had heard Bittinger’s testimony and Howard had had an opportunity to challenge its credibility by showing Bittinger’s interest and potential expectation of favorable treatment as a result of his guilty plea, the weight and believability of his testimony were for the Howard jury to determine. Appellant cannot challenge the validity of Bittinger’s guilty plea merely because Bittinger thereafter implicated appellant in the homicide.

Appellant also argues that the trial court erred in admitting into evidence photographs of the dead victim. Two such pictures were admitted into evidence. One was a photograph of the dresser; the victim’s head and bloodstained back were visible. The other was a photograph of the full body and the open cigar box. Again, the blood stain on the victim’s back was visible, as was the slit in her underwear.

This Court has adopted a two-part test for determining whether to admit potentially inflammatory photographs:

To determine whether such photographs are admissible, we have utilized a two-tiered analysis. The trial judge must initially decide whether the photographs possess inflammatory characteristics. If they do not, the photographs are admissible as are any evidentiary items, subject to the qualification of relevance ... If the photographs are deemed inflammatory, then the trial judge must decide whether the photographs are of such essential evidentiary value that their need clearly outweighs the likelihood of their inflaming the passions of the jurors.

Commonwealth v. Hudson, 489 Pa. 620, 630, 414 A.2d 1381, 1386 (1980) (citations omitted). The photographs in this case are not inflammatory and are therefore properly admissible. They showed the back of the corpse. The victim’s face, her slit throat, and her chest wounds were not shown. One could see a blood stain on the victim’s clothed back, but the blood was not present in profusion and the stab wounds themselves were not visible. One could also see the slit in the victim’s underwear and part of her buttocks was exposed, but not to such a degree as to render the photograph inflammatory. We find no abuse of discretion in the trial court’s analysis and no error in admitting the photographs into evidence.

Appellant’s next argument is that the trial court erred in denying his motion for the bifurcation of trial with separate juries, one to determine guilt, the other to determine penalty. In support of his motion, appellant had argued that a “death-qualified jury” can be reasonably predicted to be conviction prone. Therefore, there should be two juries for the two distinct phases of the trial.

Our Supreme Court has held that “simply questioning potential veniremen on their position regarding the death penalty, or excluding those who are strongly opposed to it and cannot impose it under any conditions, does not necessarily produce a prosecution oriented jury.” Commonwealth v. Maxwell, 505 Pa. 152, 165, 477 A.2d 1309, 1316 (1984); Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985). Furthermore, there is no provision in either Pennsylvania law or the Rules of Criminal Procedure for the empaneling of two separate juries in a first degree murder case. Therefore, the trial court did not err in denying appellant’s motion.

Appellant’s next argument is that the trial court erred in denying his motion for a change of venue. He asserts that pre-trial publicity peaked shortly before his trial with the arrest and guilty plea of Robert Bittinger and that much of the publicity concerning Bittinger involved details of the Commonwealth’s case against him. He argues that a change of venue should have been granted to insure the seating of a jury which had not been exposed to extensive coverage.

“Our cases make it clear that an application for a change of venue is addressed to the sound discretion of the trial court, and its exercise of discretion will not be disturbed by an appellate court in the absence of an abuse of discretion.” Commonwealth v. Casper, 481 Pa. 143, 150, 392 A.2d 287, 291 (1978), (citing numerous cases). In reviewing the trial court’s decision, the only legitimate inquiry is whether a juror formed a fixed opinion of the defendant’s guilt or innocence as a result of the pre-trial publicity. Commonwealth v. Holcomb, 508 Pa. 425, 498 A.2d 833 (1985). Generally, a defendant must demonstrate that the pre-trial publicity resulted in actual prejudice in the empaneling of the jury before a claim such as this will be successful. In some instances, however, “there can be pre-trial publicity so sustained, so pervasive, so inflammatory, and so inculpatory as to demand a change of venue without putting on the defendant any burden of establishing a nexus between the publicity and actual jury prejudice.” Commonwealth v. Frazier, 471 Pa. 121, 127, 369 A.2d 1224, 1227 (1977), citing Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209, cert. denied, 414 U.S. 878, 94 S.Ct. 164, 38 L.Ed.2d 124 (1973).

The proper examination to be made by the trial court faced with a request for a change of (venire) charging that pretrial publicity will deny the accused’s right to be tried by an impartial jury, is to first look at the nature of the content of the publicity. Does it contain references to the accused’s prior record or criminal convictions, if any? Does it expose potential jurors to any confessions or admissions of guilt allegedly made by the accused? Does it point to the accused’s guilt in terms that go beyond objective news reporting and enter the realm of the emotional and of the inflammatory? If the court answers any of these questions in the affirmative, its analysis must proceed to a determination of the likelihood that a significant number of the prospective jurors in the county were, in fact, exposed to such publicity. If the trial court answeres “Yes” to any of the above three questions concerning the content of the pretrial publicity, and if the record shows that there is a likelihood that a significant portion of the population was exposed to publicity of that nature, refusal to grant a change of venue would be an abuse of discretion unless the record also indicates that a sufficiently long period of time has passed between the time of the publicity and the time of the application for a change of venue for the court to conclude that any prejudice which may have been initially created by the publicity has been dissipated.

Commonwealth v. Frazier, supra, 471 Pa. at 131-132, 369 A.2d at 1220-2130 (emphasis in original)

The publicity which accompanied this homicide was remarkably limited and generally factual and objective. The most serious problem with the media coverage in this case concerns the coverage of Bittinger’s guilty plea, approximately one month before appellant’s trial. Such publicity so close to the trial could result in prejudice. However, the publicity here involved was basically objective and factual and cannot be said to have been inflammatory or slanted towards conviction of appellant.

Although the trial court found that the media coverage was not inherently prejudicial, further steps were taken to insure that appellant received a fair trial by a jury, which had not been prejudiced. The trial court conducted an extensive individual voir dire of the prospective panel. A few jurors indicated that they had heard about the case, but further questioning revealed that they knew only the underlying facts. Each juror who indicated that he had read or heard about the case was examined with regard to whether or not he had formed a fixed opinion as to appellant’s guilt or innocence as a result of the publicity. Any juror who indicated that he had a fixed opinion was challenged for cause, and each such challenge was sustained by the trial court. Therefore, an impartial jury was, in fact impaneled and appellant has failed to establish any actual prejudice.

Appellant’s next argument is that the trial court erred in its charge to the jury with respect to accomplice liability. He argues that the charge did not properly inform the jury of the necessary coincidence of mens rea and actus reas; that the jury should have been instructed that he must have had the specific intent to kill on the night of April 18, 1984, at the time that the murder occurred, and not at some previous time.

Appellant’s argument is an incorrect statement of the law. Under 18 Pa.C.S.A. § 306(a), a person is guilty of an offense committed by another person if he is legally accountable for the conduct of that person. A person is legally accountable for the conduct of another person if he is an accomplice of that other person, that is, if, with the intent of promoting or facilitating the commission of an offense, he solicits that person to commit the offense or aids, agrees or attempts to aid that person in planning or committing it. 18 Pa.C.S.A. § 306(b)(3) and (c)(1), Commonwealth v. Orlowski, 332 Pa.Superior Ct. 600, 481 A.2d 952 (1984). Once that bond is formed, one person can change his mind without obviating his liability as an accomplice. His responsibility ends only if he terminates his complicity prior to the commission of the offense and (1) wholly deprives it of effectiveness in the commission of the offense, or (2) give timely warning to law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense. 18 Pa.C.S.A. § 306(f)(3).

In the instant case, even under appellant’s version of the events, he is not relieved of responsibility as an accomplice. His duty under the law was to, not only terminate his complicity, but to otherwise take steps to prevent the commission of the crime. This he failed to do. To the contrary, he took a further step by giving Bittinger the key to his home. His alleged simultaneous admonition to Bittinger not to kill his wife was insufficient to negate their shared intent. Based upon the facts and the law, the trial court’s instruction on accomplice liability was proper.

Appellant argues that the trial court erred by: (1) denying his pre-trial motion to suppress statements made to the police; (2) overruling his objections to the hearsay testimony of the arresting officer; and (3) denying his pre-trial motion in limine to exclude Bittinger’s testimony on the basis that the testimony resulted from Bittinger’s detention under an improperly issued material witness order. These arguments have been considered carefully by the trial court, and there is nothing to be added to the learned discussion appearing in the court’s opinion.

Based on the foregoing, the judgment of sentence is affirmed.

      . Appellant was also found guilty of criminal conspiracy and solicitation.

      . Appellant cites 42 Pa.C.S. § 9711, which provides the procedure to be followed in the sentencing phase of first degree murder cases Subsection (b) provides that, if a defendant has pled guilty to first degree murder, a jury shall be impaneled for the purpose of determining whether the penalty should be death or life imprisonment. Due to this provision appellant argues that the District Attorney has no discretion to offer life imprisonment in exchange for a guilty in first degree murder cases.
      The decision as to whether to enter into plea negotiations is a function of prosecutorial discretion. Commonwealth v. Stafford, 272 Pa.Superior Ct. 505, 416 A.2d 570 (1979). Section 9711 of the Sentencing Code is simply the codification of the procedure to be employed in those cases where the Commonwealth refuses to plea bargain, has obtained a first degree murder conviction, and is seeking the death penalty.


text:
    517 A.2d 540
    COMMONWEALTH of Pennsylvania v. Carol STONEHOUSE, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 19, 1986.
    Filed Sept. 23, 1986.
    Reargument Denied Nov. 26, 1986.

      Shelley Stark, Assistant Public Defender, Pittsburgh, for appellant.
    Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Com., appellee.
    Before BROSKY, OLSZEWSKI and POPOVICH, JJ.
   BROSKY, Judge:

This is an appeal from the judgment of sentence imposed following a jury trial at which appellant was found guilty of third degree murder.

Appellant presents five issues for our determination: (1) whether the trial court erred by refusing to suppress certain statements made by appellant; (2) whether the testimony of Steve Owens constituted reversible error; (3) whether the Commonwealth failed to disprove self-defense; (4) whether trial counsel’s stewardship of the defense was ineffective; (5) whether a remand for resentencing is required. On our review of the record and the briefs submitted by counsel, we find no merit in appellant’s issues. Accordingly, we affirm judgment of sentence.

Appellant and the victim were City of Pittsburgh police officers. They met in March of 1980 and began dating six months later. The relationship between appellant and victim can best be described as tumultuous, as it was characterized by acts of harassment and violence.

On Wednesday, March 16, 1983, the night before the shooting, appellant drove to her girl friend’s house. Along the way, the victim tailgaited appellant’s car, bumping the rear of the car at traffic lights. Appellant, with her girl friend, drove to a bar where appellant met an old friend and neighbor, Steve Owens. When the victim arrived at the bar, words were exchanged between the victim and appellant. Appellant decided to leave, drove her friend home, and then proceeded to her apartment where she made herself ready for bed. Steve Owens, who was out walking his dog, stopped by appellant’s house. They talked for about fifteen minutes and were then interrupted by the arrival of the victim.

The victim pounded and kicked the front door. After a few minutes of inaction appellant armed herself and unlocked the door. At that same moment, the victim kicked the door open and began to struggle with appellant for the gun. Steve Owens assisted appellant and the struggle ended with the victim exiting appellant’s apartment. Seconds later appellant heard the window of her car being broken. She immediately called the police. While waiting for the police to arrive, Steve Owens left to buy a pack of cigarettes.

When appellant was alone, the victim reappeared this time with his own gun. Upon entering, he backed appellant at gun point through the kitchen into the living room and then into the bedroom. While appellant and victim were in the bedroom the victim struck appellant with his gun and then kicked her. The direction of the confrontation changed, and appellant this time backed the victim through the living room into the kitchen. Near the kitchen, appellant was able to pick up her gun and point it at the victim. When they reached the back door, the victim ran onto the porch and then down the stairway to ground level.

Appellant stepped onto the porch, leaned over the railing, and saw the victim standing below. Although there was no witness corroboration, appellant claims the victim was holding a weapon. Appellant fired twice striking the victim in the back. The victim ran off, never firing his gun. With that, appellant called the police two more times. During the first call at 7:10 a.m. she said she had shot the victim, but his whereabouts were unknown and, in the second call at 7:16 a.m., she said the victim was “bleeding all over the place”. Before the police arrived, Steve Owens returned and saw the victim lying dead on the ground next to his vehicle which was parked near appellant’s apartment.

After the shooting a passerby heard appellant state, “He shot at me, I shot at him”. Appellant asked the passerby to call the police and paramedics. When the police arrived, they found the victim lying on the sidewalk. As the police approached, appellant stated for a second time, “He shot at me, I shot at him”. The door of appellant’s apartment had to be forced open by the police because appellant was unable to open it. As the police entered, appellant stated a third time, “He shot at me, I shot at him”. While they climbed the stairs to her apartment, appellant was given her Miranda warnings. At the top of the stairs appellant appeared to have composed herself.

The police asked appellant for her weapon. An additional inquiry was made about her service revolver. Appellant was asked if she desired to have an attorney and she replied no. She was then asked if she wanted the police to contact her brother, another police officer, and she answered yes. The questioning then turned to what had happened. Appellant’s response was the same as before: “He shot at me, I shot at him.” Appellant tried to briefly describe the events of the shooting. She was taken to the Pittsburgh Public Safety Building at 8:25 a.m. where she was again given Miranda warnings and thereafter made a statement.

Appellant was tried before a jury and found guilty of third degree murder. Motions for a new trial and in arrest of judgment along with amended post-trial motions were denied. Appellant was then sentenced to a period of not less than seven and not more than fourteen years. A motion for reconsideration of sentence was filed and subsequently denied. Appellant filed her appeal from judgment of sentence and, as a result, the case is presently before us.

Appellant argues that the trial court erred by refusing to suppress her statements made at the scene of the homicide. She argues that due to her hysterical condition she had not been given an explicit Miranda waiver. Our Pennsylvania Supreme Court has said:

This court has consistently refused to adhere to a per se rule of incapacity to waive constitutional rights based on mental or physical deficiencies. Rather, we look at all the circumstances to determine if a knowing and intelligent waiver was effected, (citations omitted).

Commonwealth v. Hicks, 466 Pa. 499, 505, 353 A.2d 803, 805 (1976); see also Commonwealth v. Glover, 488 Pa. 459, 412 A.2d 855 (1980). The Commonwealth need only to show by a preponderance of the evidence that a voluntary, knowing, and intelligent waiver of constitutional right was made. Commonwealth v. Scarborough, 491 Pa. 300, 421 A.2d 147 (1980).

From the record it is clear that appellant was given ample opportunity to hear as well as comprehend her Miranda warnings. “In making this determination, we are to consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.” Commonwealth v. Goodwin, 460 Pa. 516, 522-523, 333 A.2d 892, 895 (1975); see also Commonwealth v. Powers, 484 Pa. 198, 398 A.2d 1013 (1979). The police officers at the scene testified that appellant was calm when she reached her apartment. Further, when she was again asked if she wanted an attorney, she indicated not. “This issue is initially to be determined by the hearing court and where, as here, those findings have ample support in the record, they will be sustained upon appellate review.” Commonwealth v. Bundy, 458 Pa. 240, 244, 328 A.2d 517, 520 (1974).

Appellant’s next assignment of error is that the trial court abused its discretion by allowing the prosecution to cross-examine and impeach Steve Owens. We disagree. Although outright impeachment of one’s own witness presents questions of unfairness, latitude must be given by allowing a party to cross-examine his witness “when it is believed that the interest of truth and justice so require.” Commonwealth v. Smith, 511 Pa. 343, 513 A.2d 1371 (E.D.Pa.1986). Commonwealth v. Waller, 498 Pa. 33, 444 A.2d 653 (1982).

The record indicates the testimony of Steve Owens was incomplete due to his failure to remember details that occurred on the night of the homicide.

It is well settled a party may contradict his own witness by independent evidence showing facts to be different from those testified to by such witness. ... Such rule does not violate the general rule that one may not impeach his own witness because to contradict is not to impeach. Impeachment is directed to the credibility of the witness for the purpose of discrediting him. It ordinarily furnishes no factual evidence. Contradiction on the other hand, is directed to the accuracy of testimony and supplies additional factual evidence to be considered along with such testimony. Such evidence as is relevant to the issues may not be excluded because it contradicts another witness called by the same party, whether such witness is friendly or hostile.

Commonwealth v. Myrick, 468 Pa. 155, 164, 360 A.2d 598, 602 (1976). Lastly, we agree with the Commonwealth that even if there were error, it was harmless. We find no significant variation in either the accounts of March 16 and 17, 1983, by either appellant or Steve Owens. Consequently, we find no possibility of reversal as a remedy.

Appellant next argues that the Commonwealth did not disprove appellant’s claim of self-defense. Our scope in review in issues of this nature is well established.

In reviewing the sufficiency of the evidence, we must accept as true all the evidence, and the reasonable inferences therefrom, upon which the factfinder could have based its verdict and then ask whether that evidence, viewed in the light most favorable to the Commonwealth as verdict winner, was sufficient to prove guilt beyond a reasonable doubt.

Commonwealth v. Ritchie, 324 Pa.Super. 557, 472 A.2d 220 (1984); Commonwealth v. Parker, 494 Pa. 196, 431 A.2d 216 (1981); Commonwealth v. Stockard, 489 Pa. 209, 413 A.2d 1088 (1980). The facts of this case indicate the victim was in retreat. At the time he was gunned down the victim did not present a threat of imminent danger of death or great bodily harm to the appellant. We are convinced the victim harassed, physically abused, and even threatened the life of appellant. However, at the time the victim was shot he was in the street, two flights of stairs down and away from appellant. The continued relationship between appellant and the victim further points to how unreasonable appellant’s assertion of self-defense is. Appellant had ample time and opportunity to have the victim arrested. Even more damaging for appellant is the fact that she is a police officer. She was sworn to protect society from the very same crime that she committed. Instead of using her training and experience with the law to solve her problem, she used unnecessary and unreasonable deadly force. Our Pennsylvania Supreme Court has clearly stated:

To establish self-defense, the following elements must be shown: (1) the slayer must have been free from fault in provoking or continuing the difficulty which resulted in the killing; (2) the slayer must have reasonably believed that he was in imminent danger of death, great bodily harm or some felony, and that there was a necessity to kill in order to save himself therefrom; and, (3) the slayer must not have violated any duty of retreat to avoid the danger.

Commonwealth v. Smith, 484 Pa. 71, 76-7, 398 A.2d 948, 951 (1979). The trier of fact found appellant’s actions to be unreasonable. We will not disturb that finding in the absence of evidence that contradicts their finding.

Appellant argues that her trial counsel was ineffective. First, appellant contends her trial counsel failed to raise the “battered woman syndrome.” We cannot agree. The “battered woman syndrome” has not been recognized in this Commonwealth as a viable defense in case of homicide. “Clearly, counsel who fails to raise nonexistent defenses is not ineffective.” Commonwealth v. Unger, 494 Pa. 592, 597, 432 A.2d 146, 148 (1980); Commonwealth v. Skurkis, 465 Pa. 257, 348 A.2d 894 (1975), Commonwealth v. Boone, 450 Pa. 357, 301 A.2d 699 (1973).

Appellant further argues her trial counsel was ineffective for failure to request certain jury instructions. The basis of appellant’s argument is that the jury was denied the opportunity to hear instructions that would delineate more completely the difference between third degree murder and voluntary manslaughter. Moreover, appellant asserts that the jury should have been instructed on the reasonableness of appellant’s belief that the victim had placed her in imminent danger of death or bodily injury.

“A court’s charge to the jury will be upheld if it adequately and accurately reflects the law and was sufficient to guide the jury properly in its deliberations.” Commonwealth v. Reynolds, 256 Pa.Super. 259, 277, 389 A.2d 1113, 1122 (1978).

Our review of the record leads us to conclude the trial court properly instructed the jury. With regard to self-defense the trial court instructed:

Now, special rules apply in determining the availability of the defense of justification or of self-defense when deadly force was involved. Because the Commonwealth has the burden of disproving the defense of justification, you may find the defendant guilty only if you’re satisfied beyond a reasonable doubt that she did not reasonably believe that the use of deadly force was then and there necessary to protect herself against death or serious bodily injury. In other words, if you’re satisfied beyond a reasonable doubt that the defendant was not reasonable in her belief that the use of deadly force was then and there necessary to protect herself from the danger of death or serious bodily injury, then you may find the defendant guilty of one of the crimes charged. However, if the defendant believed it was necessary to use deadly force to protect herself from death or serious bodily injury but her belief was unreasonable, then the degree of homicide would not rise higher than voluntary manslaughter and, under those circumstances, if you so find, you may find her guilty of voluntary manslaughter.

Trial transcript, 1723-4. This instruction clearly states that the burden of disproving self-defense is on the Commonwealth. Appellant further argues trial counsel was ineffective for failing to request special instructions for voluntary manslaughter. Again, the record does not support appellant’s argument. The instructions given were:

Now, what is voluntary manslaughter? A person commits voluntary manslaughter when he intentionally kills another but, at the time of the killing, he is acting under sudden and intense passion resulting from serious provocation on the part of the person he killed. The serious provocation referred to is conduct sufficient to excite an intense passion in a reasonable person. And passion includes anger, terror, rage or resentment. However, if a reasonable cooling time elapses between the provocation and the killing, the provocation will not reduce murder to voluntary manslaughter if he intentionally or knowingly kills another person if, at the time he believes that it was necessary to do so to protect himself from death or serious bodily injury, but his belief was unreasonable.

Trial transcript, 1721-2. We find the instruction properly presents the elements of voluntary manslaughter. Also with regard to voluntary manslaughter, appellant contends her trial counsel was ineffective for failure to request an instruction for a finding of guilty of voluntary manslaughter “pursuant to its inherent mercy power....” Appellant cites the law in Commonwealth v. Scaramuzzino, 485 Pa. 513, 403 A.2d 82 (1979), as controlling:

First, a trial court must give a voluntary manslaughter charge upon request where an accused is charged with murder. Second, the court’s charge may include a statement of opinion that insufficient evidence exists to support a voluntary manslaughter charge if, in fact, the evidence is insufficient, and if two principle conditions are met, namely:
“(1) the trial court must fully inform the jury of its ‘power’ to return a verdict of manslaughter, whether supported by the evidence or not; and (2) the court must also instruct the jury that it is not bound by the court’s comments concerning the evidence because it is the jury which is the sole finder of the facts”

(citations omitted), Id., 485 Pa. at 516-18, 403 A.2d at 83-4. We disagree with appellant. The charge given the jury does not fall within the confines of Scaramuzzino, supra. Specifically, the trial court did not make any statement of opinion regarding the insufficiency of the evidence for a finding of voluntary manslaughter. Consequently, we find it unnecessary for the trial court to have given a special charge.

Appellant contends that the sentence imposed by the trial court was excessive. Appellant’s contention is not supported by the record. The trial court’s considerations for imposing sentence, although brief, are in accordance with Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977).

Appellant’s final issue concerned the constitutionality of the Mandatory Sentencing Act; 42 Pa.C.S. § 9712. This issue has been decided by both our Pennsylvania Supreme Court and most recently by the United States Supreme Court. Addressing the act, the Pennsylvania Court said:

The effect of section 9712 is merely to limit the discretion of the sentencing court in the selection of a minimum sentence where it is determined that the defendant visibly possessed a firearm during the commission of the crime. The maximum permissible term of imprisonment remains unaffected. The defendant has no cognizable right to leniency. Thus although a finding that this particular sentencing factor is present may have serious consequences for the defendant, we do not believe that a defendant subject to a section 9712 proceeding is in a position significantly distinguishable from that of other convicted defendants during the sentencing phase.

Commonwealth v. Wright, 508 Pa. 25, 40-1, 494 A.2d 354, 362 (1985), aff’d, — U.S. —, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). The United States Supreme Court affirmed and commented:

We believe that the present case is controlled by Patterson [Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977)], our most recent pronouncement on this subject, rather than by Mullaney [Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975)]. As the Supreme Court of Pennsylvania observed, the Pennsylvania legislature has expressly provided that visible possession of a firearm is not an element of the crimes enumerated in the mandatory sentencing statute, § 9712(b), but instead is a sentencing factor that comes into play only after the defendant has been found guilty of one of those crimes beyond a reasonable doubt. Indeed, the elements of the enumerated offenses, like the maximum permissible penalties for those offenses, were established long before the Mandatory Minimum Sentencing Act was passed. While visible possession might well have been included as an element of the enumerated offenses, Pennsylvania chose not to redefine those offenses in order to so include it, and Patterson teaches that we should hesitate to conclude that due process bars the State from pursuing its chosen course in the area of defining crimes and prescribing penalties.

Id. at —, 106 S.Ct. at 2416-7.

In light of the foregoing, appellant’s final contention is devoid of merit.

Judgment of sentence affirmed.

POPOVICH, J., concurs in the result.

      . This case is not to be construed as a position on the validity of the "battered woman syndrome.” We only state that in the present evolution of the law it is not a recognized defense to homicide. Therefore, "we cannot impose upon trial counsel the qualities of a seer and fault him for not foreseeing ...” Commonwealth v. Triplett, 476 Pa. 83, 89, 381 A.2d 877, 881 (1977).