author: KELLY, Judge:

text:
    567 A.2d 724
    COMMONWEALTH of Pennsylvania v. Derrick GIBSON, Appellant.
    Superior Court of Pennsylvania.
    Argued June 28, 1989.
    Filed Dec. 22, 1989.

      Helen Marino, Asst. Public Defender, Philadelphia, for appellant.
    JoAnn Verrier, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before TAMILIA, KELLY and HESTER, JJ.
   KELLY, Judge:

Appellant, Derrick Gibson, appeals from judgment of sentence imposed following his jury trial conviction of robbery. Appellant seeks discharge or a new trial based upon his contentions that: his rights to due process and equal protection were denied by his inclusion in a career criminal program; his right to an impartial jury was denied by the trial court’s restriction of the scope of voir dire; he was prejudiced by improper references to police photographs; he was prejudiced by inaccurate and incomplete jury instructions; and, he was prejudiced by prosecutorial misconduct in the prosecution’s closing argument. We find no merit in the contentions and affirm judgment of sentence imposed by the trial court.

FACTS AND PROCEDURAL HISTORY

On September 24,1985, Mrs. Ruth Flounders went to visit her friend, Mr. Frank Keisler. At about 11:00 p.m., she decided to go home. Mr. Keisler offered to walk her home to make sure she reached her home, a few blocks away on Forty Third Street in Philadelphia, safely.

The entry to Mrs. Flounders’ home has an outside door, a foyer, and an inside door. After Mrs. Flounders opened the outside door, but before she entered the inside door, appellant appeared and pushed himself and Mrs. Flounders into the foyer and demanded money. Mr. Keisler had already entered the foyer. Appellant had his hand covered by a towel. Both Mrs. Flounders and Mr. Keisler believed appellant had a gun under the towel. While appellant was distracted by Mr. Keisler, Mrs. Flounders was able to flee into the house. Appellant then rummaged through Mr. Keisler’s pockets with the hand which was not covered by the towel. Mr. Keisler took advantage of this opportunity, shoved appellant, and managed to escape into the house. Appellant broke the lead glass panels of the inside door attempting to gain entry, but fled the scene when Mr. Flounders yelled out as he joined his wife and Mr. Keisler at the inside door to help repel appellant’s efforts to enter the house.

Both Mrs. Flounders and Mr. Keisler gave descriptions of appellant to the police shortly after the incident. Mr. Keisler was able to identify appellant from among several hundred police photographs. He later identified appellant again from a separate photo array. Mrs. Flounders indicated that she could not make a positive identification from the police photographs. Prior to the preliminary hearing, at defense request a line-up identification procedure was conducted using other young men with similar characteristics selected to be in the line-up by defense counsel. Both Mrs. Flounders and Mr. Keisler, separately, positively identified appellant as their attacker.

On November 18, 1987, following a two day jury trial, appellant was found guilty of robbery. Post-verdict motions were filed, argued, and denied. On January 11, 1988, appellant was sentenced to a one and one-half (IV2) to ten (10) year term of imprisonment. Timely notice of appeal was filed.

I. CAREER CRIMINAL PROGRAM

Appellant first contends, generally, that he was denied due process and equal protection of the laws by the inclusion of his case in Philadelphia’s Career Criminal Program. In addition to his general challenge to the program, appellant contends specifically that the program improperly interfered with his right to a non-jury trial pursuant to Pa.R.Crim.P. 1101, and that the Commonwealth failed to establish that his case was appropriate for inclusion in the program.

A. GENERAL CHALLENGE

Appellant’s general challenge to career criminal programs is vague and conclusory. He argues that programs such as Philadelphia’s, which involve not only the special allocation of prosecutorial resources but also the designation of certain common pleas court judges to hear career criminal cases, “should have no place in the administration of criminal justice." (Appellant’s Brief at 61). We find no reason to reconsider, as appellant requests, the numerous prior decisions of this Court rejecting various constitutional challenges to Philadelphia’s Career Criminal Program. See Commonwealth v. Barnes, 388 Pa.Super. 327, 565 A.2d 777 (1989); Commonwealth v. Simmons, 388 Pa.Super. 271, 565 A.2d 481 (1989); Commonwealth v. Vinson, 361 Pa.Super. 526, 522 A.2d 1155 (1987); Commonwealth v. Stinnett, 356 Pa.Super. 83, 514 A.2d 154 (1986); Commonwealth v. Carter, 347 Pa.Super. 624, 501 A.2d 250 (1985), allocatur denied 517 Pa. 591, 535 A.2d 81 (1987); Commonwealth v. Kellum, 339 Pa.Super. 513, 489 A.2d 758 (1985); Commonwealth v. Hailey, 332 Pa.Super. 167, 480 A.2d 1240 (1984).

B. Pa.R.Crim.P. 1101 Appellant also contends more specifically that the assignments of his case to the career criminal program infringed upon his “right” to a non-jury trial pursuant to Pa.R.Crim.P. 1101. Appellant cites Commonwealth v. Goodman, 454 Pa. 358, 311 A.2d 652 (1973) and Commonwealth v. Jones, 259 Pa.Super. 103, 393 A.2d 737 (1978), in support of his argument that recusal must be granted if the trial judge becomes aware of inadmissible evidence of prior convictions or other seriously prejudicial evidence during pre-trial proceedings. Appellant concludes that assignment of career criminal cases to particular judges improperly infringes upon his qualified right to a non-jury trial pursuant to Pa.R.Crim.P. 1101 as set forth in Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982), by making him choose between a jury trial and a bench trial before a judge tainted with knowledge of his prior record via the fact of his inclusion in the career criminal program.

This contention has been fully addressed and unequivocally rejected previously. See Commonwealth v. Simmons, supra, 565 A.2d at 483; Commonwealth v. Stinnett, supra, 514 A.2d at 161; Commonwealth v. Carter, supra, 501 A.2d at 252-53; Commonwealth v. Kellum, supra, 489 A.2d at 759-61 & nn. 1-3; Commonwealth v. Hailey, supra, 480 A.2d at 1243. The only possible distinction between those cases and this, is that here appellant’s entire prior criminal record consisted of juvenile delinquency adjudications which ordinarily could not be used for impeachment purposes at trial. See Commonwealth v. Case, 322 Pa.Super. 24, 469 A.2d 162 (1983), aff'd 513 Pa. 299, 520 A.2d 1373 (1987) (per curiam). This factual distinction does not compel a different result.

A party seeking recusal of the trial judge bears the burden of establishing the grounds for recusal. Commonwealth v. Reddix, 355 Pa.Super. 514, 522, 513 A.2d 1041, 1044 (1986). Participation of the trial judge in an earlier stage of proceedings or in a separate matter involving the same defendant does not, by itself, establish grounds for recusal. Commonwealth v. Sirbaugh, 347 Pa.Super. 154, 167, 500 A.2d 453, 459 (1985). Even the fact that the trial judge may have been made aware of improper evidence does not require recusal; because, a trial judge is presumed to be capable of disregarding improper evidence, including evidence of prior criminal acts. Commonwealth v. Davis, 491 Pa. 363, 371-72, 421 A.2d 179, 183 (1980); Commonwealth v. Stinnett, supra, 514 A.2d at 161; Commonwealth v. Carter, supra, 501 A.2d at 252-53. It is only when the evidence brought to the attention of the trial court is both inadmissible and highly prejudicial that recusal may be required. Commonwealth v. Lewis, 314 Pa.Super. 298, 303-04, 460 A.2d 1149, 1151-52 (1983).

This Court has held on several occasions that, absent exceptional circumstances, a trial court must grant a recusal motion following the withdrawal of a guilty plea. Commonwealth v. Simmons, 335 Pa.Super. 57, 483 A.2d 953 (1984) (collecting cases); Commonwealth v. Casella, 312 Pa.Super. 375, 458 A.2d 1007 (1983) (illustrating exceptional circumstances). Similarly, this Court held in Commonwealth v. Jones, supra, that a new trial was required based upon the specific prejudice arising from particular inferences which the trial court expressly drew from inadmissible prior conviction evidence considered by the trial court. 393 A.2d at 740. However, broader statements in Goodman and Jones, suggesting the desirability or propriety of recusal in cases not involving a risk of specific prejudice, are plainly dicta which has not been followed in subsequent cases where the issue was squarely presented. See Commonwealth v. Davis, supra; Commonwealth v. Stinnett, supra. Thus, despite reservations regarding the potential for prejudice in circumstances like those presented in Simmons and Jones, there is still a strong presumption that a trial judge will ordinarily be capable of ignoring inadmissible evidence. See generally Commonwealth v. Batty, 482 Pa. 173, 178, 393 A.2d 435, 438 (1978) (explaining the rationale for this presumption).

Moreover, in Commonwealth v. Sorrell, supra, our Supreme Court affirmed, as being within the sound discretion of the trial court, the trial court’s decision to deny defendant Smith’s motion for a non-jury trial based upon the fact that the trial court doubted its own impartiality following its exposure to the defendant’s prior record during pre-trial proceedings. 456 A.2d at 1329. If, as appellant argues, Pa.R.Crim.P. 1101 was intended to confer a right to a non-jury trial before a trial judge free from any possible taint arising from knowledge of the defendant’s prior record, then the appropriate course would have been for the trial court to recuse itself rather than to deny the motion for a non-jury trial. Our Supreme Court’s approval of the denial of the motion for a non-jury trial under those circumstances exposes the fundamental flaw in appellant’s contention. Succinctly, there was no “right” to a non-jury trial with which the career criminal program could improperly interfere. See Commonwealth v. Hailey, supra, 480 A.2d at 1242-43.

C. SELECTION CRITERIA

Finally, appellant contends that even if the program itself is constitutional, the assignment of his case to the program was not, as the prosecution failed to establish that his case properly fell within the program selection criteria. Appellant cites Commonwealth v. Sorrell, supra, and Commonwealth v. Carter, supra, in support of his argument that the Commonwealth is required to disclose the specific selection criteria applicable to the program and must establish that the case meets those criteria whenever a defendant challenges the assignment of his or her case to the program. We cannot agree.

Initially, we note and reemphasize this Court’s previous declaration that an accused “has no substantive right in the less aggressive prosecutorial effort which is commonly afforded criminal defendants not prosecuted under career criminal programs.” Commonwealth v. Stinnett, supra, 514 A.2d at 160. Appellants prosecuted under the program retain the right to be heard by themselves and counsel, to demand the nature and cause of the accusation against them, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in their favor, to have a speedy public trial by an impartial jury of their peers. They cannot be compelled to give evidence against themselves, nor can they be deprived of life, liberty or property, unless by the judgment of their peers or the law of the land. Pa. Const.Art. 1, sec. 9. None of these rights are in the least encroached upon by career criminal programs, nor has appellant asserted any such encroachment. Indeed, by reducing unnecessary continuances and ensuring accelerated and enhanced prosecutorial preparation, the assignment of a case to the career criminal program provides added protection to the accused’s speedy trial right, which crowded dockets and logistical difficulties often deny other criminal cases. Rather, appellant’s constitutional challenge sounds solely under equal protection grounds, and presents no substantive or procedural due process challenge.

Appellant’s criminal record speaks for itself. On June 24, 1983, appellant was adjudicated delinquent on charges of burglary, criminal trespass and conspiracy. In November 1983, appellant was adjudicated delinquent on charges of burglary, theft, criminal trespass and conspiracy. In both instances he received probation. On October 26, 1984, appellant was adjudicated delinquent on charges of robbery, aggravated assault, reckless endangerment, terroristic threats and conspiracy. He was then referred to the juvenile facility at Glen Mills. On March 26, 1985, appellant was adjudicated delinquent on charges of robbery, aggravated assault, theft, and terroristic threats. He was again referred to the Glen Mills facility. Twenty-eight days after his release from the Glen Mills facility, appellant committed the instant armed robbery offense. Thus, in the two year period preceding this offense, appellant was adjudicated delinquent on charges involving serious criminal offenses four times. Despite appellant’s claim at sentencing that he had been “railroaded,” and his incredible assertion that despite his juvenile record he was “a typical teenager” (N.T. 1/11/88 at 46-47), there can be little doubt that the label “career criminal” aptly fits appellant, notwithstanding his youth.

In Commonwealth v. Sorrell, supra, our Supreme Court contrasted Pa.R.Crim.P. 1101 and its provision for an impartial judicial determination as to whether a non-jury trial should be permitted, with 42 Pa.C.S.A. § 5104(c) which vested discretion in the prosecution as to whether a non-jury trial would be permitted without any provision for accountability, i.e. without requiring disclosure of the reasons for denial on the record. 456 A.2d at 1329. This comparison was intended to demonstrate our Supreme Court’s reason for promulgating a procedural rule which denied prosecutors the equivalent of a veto power over non-jury trials which 42 Pa.C.S.A. § 5104(c) purported to convey.

In Commonwealth v. Carter, supra, a panel of this Court expressed its belief that “the policy of Sorrell mandates that the District Attorney be accountable in administering this [career criminal] program.” 501 A.2d at 253. (Emphasis in original). The panel further stated:

Although appellant has not argued this issue on appeal, inherent in our. holding is the requirement that the prosecutor exercise good faith in assigning to the program only those defendants who truly fit the criteria for inclusion, and that the criteria be reasonably adapted to effectuate the stated policy of more effectively prosecuting recidivists. It is imperative that the District Attorney not be permitted to administer this program capriciously, lest Sorrell’s policy against prosecutorial unaccountability be undermined.

501 A.2d at 253-54. (Emphasis added). Though plainly dicta, we agree that the constitutional mandates of due process and equal protection preclude capricious or discriminatory administration of the career criminal program. However, we find no basis for appellant’s assertion that accountability interests discussed in Sorrell and Carter require that we impose a burden of proof upon the prosecution to establish that appellant’s inclusion in the program was not capricious or discriminatory whenever a defendant challenges the inclusion of his or her case in the program. Cf Commonwealth v. Simmons, supra, 565 A.2d at 486-487. (Beck, J., concurring).

Ordinarily, a party challenging prosecutorial conduct as capricious or discriminatory bears the burden of establishing the capricious or discriminatory nature of the act challenged. See Commonwealth v. Covert, 322 Pa.Super. 192, 469 A.2d 248 (1983). In cases where the discretionary or confidential nature of the act challenged has prevented direct proof of the alleged capricious or discriminatory nature of the act, a preliminary showing establishing a likelihood that the act may have been capricious or discriminatory has been required before the prosecution was required to provide a justification for its action on the record. See e.g. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (alleged discriminatory use of peremptory challenges); Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986) (alleged prosecutorial vindictiveness); Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (alleged impropriety regarding use of confidential informants to support warrant applications); see also Commonwealth v. Hardcastle, 519 Pa. 236, 546 A.2d 1101 (1988); Commonwealth v. Miller, 513 Pa. 118, 518 A.2d 1187 (1986); Commonwealth v. Rocco, 375 Pa.Super. 330, 544 A.2d 496 (1988). When the preliminary showing is made, a response must be made in rebuttal; nonetheless, when a response is made, the ultimate and dispositive question remains whether caprice or discrimination was established, and the burden of persuasion rests on the party asserting misconduct. See Batson v. Kentucky, 476 U.S. at 98 & nn. 20-21, 106 S.Ct. at 1724 & nn. 20-21, 90 L.Ed.2d at 88-89 & nn. 20-21; cf. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-58, 101 S.Ct. 1089, 1091-1097, 67 L.Ed.2d 207, 215-17 (1981); Allegheny Housing Rehabilitation Corporation v. Commonwealth, Human Relations Commission, 516 Pa. 124, 129-31, 532 A.2d 315, 317-18 (1987).

Here, appellant contends that his conviction must be reversed because the Commonwealth failed to prove that the inclusion of his case in the career criminal program was not unconstitutional. We reject appellant’s allocation of a burden of production and the ultimate burden of proof on the Commonwealth. Rather, appellant’s claim must fail as appellant has failed to establish even a preliminary showing that the inclusion of his case in the program was likely to have been capricious or discriminatory, and therefore unconstitutional. To the contrary, the record plainly reveals that the assignment of appellant’s case to the career criminal program was neither capricious nor discriminatory.

Appellant argues specifically that because his delinquency adjudications did not meet the assignment criteria last publically announced for the Philadelphia Career Criminal Program in 1983, the inclusion of his case in the program must be deemed capricious. This contention rests upon two erroneous assumptions, i.e. that the selection criteria could only be altered by a publicly announced revision to the program, and that the selection criteria must be narrowly construed. We reject both of those assumptions.

The career criminal program model designed by the Law Enforcement Assistance Administration (and adopted in Philadelphia) was designed to meet different needs in different communities through (among other things) variation in the selection criteria. See generally Gay, Targeting Law Enforcement Resources: The Career Criminal Focus, at 25-30 (U.S.DeptJust., NIJ 1985) (discussing policy and administrative aspects of the choice of selection criteria); Williams, Selection Criteria for Career Criminal Programs, 71 J.Crim.L. & Crim. 89, 89-93 (1980) (discussing the “crime reduction through incapacitation” aspects of developing appropriate selection criteria); see also The National Directory of Career Criminal Programs, passim (INSLAW 1980) (listing career criminal programs known to be operating in 1980 and their selection criteria, demonstrating the variability of selection criteria used).

Similarly, changing needs within a community were to be accomodated by modification of the selection criteria as the program evolved. See Gay, supra at 27-30 (noting changes in selection criteria in New York and Maryland programs as those programs developed). Peter Greenwood of the Rand Corporation explained succinctly, “... as time passes, the career criminal concept will continue to evolve. Selection criteria will be modified, and new procedures will be tested.” Greenwood, Career Criminal Prosecution, 71 J.Crim.L. & Crim. 85, 88 (1980). Adjustment to the selection criteria was to be based upon general research relating to the career criminal program model and continuous collection and analysis of program and local crime statistics. Memorandum, supra at n. 2 (stating the selection criteria as revised in 1983); Concept Paper, supra at n. 2, at 4-5 (the original model specifically envisioned such revisions and provided for a Joint Crime Analysis Team to make reports and offer recommendations to the program’s Coordination and Management Team regarding such revisions); see also Career Criminal Briefing Paper No. 4: Monitoring and Evaluation, passim (LEAA undated, post 1978) (discussing the importance of monitoring, evaluation, and revision generally).

While public disclosure of any changes in the selection criteria might help allay any suspicions of capricious or discriminatory administration of the program, we find no constitutional mandate for such candor by the district attorney regarding his policy decisions. Cf. Commonwealth v. Simmons, supra (Beck, J., concurring). Rather, justification for the assignment of a particular case to the career criminal program is only constitutionally required when the defendant has made a preliminary showing that there is a likelihood that the assignment was capricious or discriminatory. See Batson v. Kentucky, supra; Texas v. McCullough, supra; Franks v. Delaware, supra.

Moreover, though the precise terms of the career criminal program as currently administered by the Philadelphia District Attorney’s Office are not set forth in the record, it is readily apparent that juvenile delinquency adjudications are considered among other factors in determining whether assignment criteria are met. The Commonwealth’s brief to this Court clearly indicates that it is the policy of the Philadelphia District Attorney to consider prior juvenile delinquency adjudications as well as prior convictions in deciding whether to assign a particular case to the career criminal unit. (Commonwealth Brief at 21-22). It is important to note in this respect that appellant does not argue that his prior delinquency adjudications were treated differently than those of other defendants, rather he complains that the district attorney has violated his constitutional rights by considering juvenile delinquency adjudications at all. Moreover, we find no indication, whatsoever, in the record that appellant’s juvenile record was treated differently than the juvenile records of similarly situated defendants.

There is no reason why the Philadelphia District Attorney could not include prior juvenile delinquency adjudications among his career criminal program selection criteria. In Commonwealth v. Ebert, 369 Pa.Super. 318, 535 A.2d 178 (1987), this Court held that a district attorney may properly consider juvenile delinquency adjudications in exercising his or her discretion to grant or deny ARD. Similarly, in Commonwealth v. Woodward, 368 Pa.Super. 363, 534 A.2d 478 (1987), this Court held that juvenile delinquency adjudications may properly be considered in determining the convict’s prior record score under the sentencing guidelines. Cf. Commonwealth v. Darden, 366 Pa.Super. 597, 531 A.2d 1144 (1987) (juvenile delinquency adjudications may properly be considered as aggravating factors at sentencing when they are not otherwise incorporated in the sentencing guidelines prior record score provisions). We can see no reason, then, why the prior juvenile delinquency adjudications could not be considered in deciding whether to assign a case to the career criminal program.

Indeed, consideration of prior juvenile delinquency adjudications may greatly enhance the crime prevention effects of the selective incapacitation which the career criminal program is intended to produce. Studies have indicated that younger criminals commit crimes more frequently than older criminals. In evaluating the original career criminal program model, commentators noted that by requiring multiple prior adult felony convictions, the program targeted career criminals who were already statistically likely to be committing crimes less frequently than the younger career criminals who had not yet been convicted of the requisite number of designated felonies. Commentators specifically recommended that this “defect” in the career criminal program model be cured by including prior juvenile delinquency adjudications among the selection criteria. From the record in this case it appears that the Philadelphia District Attorney’s Office has embraced this recommendation and has adjusted case assignment policies accordingly.

It is not clear from this record whether a formal revision of the selection criteria was made or whether existing criteria were merely construed liberally to include adjudications as well as convictions. Regardless, we are of the opinion that appellant’s four juvenile delinquency adjudications criminal offenses involving burglary and/or robbery within two years of the current armed robbery offense could reasonably be considered the substantial equivalent of two robbery convictions (the assignment threshhold under the 1983 guidelines) for the purpose of the initial case selection screening procedures. We see no reason why the district attorney’s office could not liberally construe its own guidelines to effectuate the purposes of its own program. Appellant’s reliance upon the presumptive difference between the terms “conviction” and “adjudication” when used in legislative enactments (see Commonwealth v. Case, supra) is misplaced. We deal here with the question of whether an executive authority has reasonably applied general guidelines promulgated by the executive authority itself to govern the exercise of its legitimate discretionary authority, and not with a question of statutory construction. Moreover, the program model adopted in Philadelphia specifically envisioned “sufficient flexibility” to permit the Career Criminal Unit to reject some cases that met the strict selection criteria, and accept some cases which did not meet the strict selection criteria. See Concept Paper, supra at n. 2, at 8.

While general internal guidelines may be appropriate to prevent capricious or discriminatory exercises of prosecutorial discretion in assigning cases to career criminal programs, broad prosecutorial discretion must necessarily remain. Consequently, we reject appellant’s request that we strictly construe the Philadelphia District Attorney’s career criminal program case assignment selection criteria. The due process and equal protection clauses proscribe capricious or discriminatory exercises of prosecutorial discretion; they do not command rigidity.

In summary, we find no reason to doubt that the current selection criteria of Philadelphia’s Career Criminal Program were applied in good faith, and the criteria themselves have been appropriately adapted to effectuate the stated policy of the program. Cf. Commonwealth v. Carter, supra. Hence, appellant’s constitutional challenge to the inclusion of his case in the career criminal program based upon alleged capriciousness is found to be without merit.

II. VOIR DIRE

Appellant next contends that the trial court denied him a fair and impartial jury by unduly restricting voir dire. Specifically, appellant argues that the trial court abused its discretion in refusing to question the venire as to whether they or close family or friends had been victims of violent crime rather than robbery only, and whether any member of the venire had previously served on a jury. We find no merit in the contentions.

The sole legitimate purpose of voir dire is to ensure selection of a competent, fair, and impartial jury. Commonwealth v. Drew, 500 Pa. 585, 588-89, 459 A.2d 318, 320 (1983); Commonwealth v. Hathaway, 347 Pa.Super. 134, 142-43, 500 A.2d 443, 447 (1985); Commonwealth v. Slocum, 384 Pa.Super. 428, 432, 559 A.2d 50, 52 (1989). While the trial court must provide reasonable latitude for counsel to discover and expose grounds to challenge members of the venire for cause, the court must also consider the countervailing privacy interests of the members of the venire. See Commonwealth v. Slocum, supra; see generally Note, The Right to Privacy of Prospective Jurors During Voir Dire, 70 Cal.L.Rev. 708, 712-23 (1982); Comment, Voir Dire Limitations as a Means of Protecting Juror’s Safety and Privacy, 93 Harv.L.Rev. 782, 782-92 (1980); Note, The Defendant’s Right to an Impartial Jury and the Rights of Prospective Jurors, 48 U.Cinn.L.R. 985, 985-98 (1979). The appropriate scope of voir dire will consequently depend upon the peculiar facts of particular cases. Commonwealth v. DeHart, 512 Pa. 235, 247, 516 A.2d 656, 662 (1986); Commonwealth v. Richardson, 504 Pa. 358, 362, 473 A.2d 1361, 1363 (1984); Commonwealth v. Slocum, supra, 559 A.2d at 53.

While voir dire related to the discovery of grounds for challenges for cause will certainly aid counsel in exercising peremptory challenges, counsel is not entitled under Pennsylvania law to ask questions intended solely to aid the exercise of peremptory challenges. Commonwealth v. England, 474 Pa. 1, 6-7, 375 A.2d 1292, 1295 (1977); Commonwealth v. Slocum, supra, 559 A.2d at 53; Commonwealth v. Hathaway, supra, 500 A.2d at 447; Commonwealth v. DeMarco, 332 Pa.Super. 315, 331, 481 A.2d 632, 640 (1984); see also Gaskins, “Jury Selection in Pennsylvania,” in How to Pick a Jury, at 36 (PBI 1986). Moreover, it is well settled that the scope and manner of voir dire is left to the sound discretion of the trial court, and the trial court’s decisions relating to the scope of voir dire will only be reversed in exceptional cases when an abuse of that broad discretion occurs. Commonwealth v. Abu-Jamal, 521 Pa. 188, 200, 555 A.2d 846, 852 (1989); Commonwealth v. Richardson, supra, 473 A.2d at 1363; Commonwealth v. Drew, supra, 459 A.2d at 321; Commonwealth v. Slocum, supra, 559 A.2d at 53; Pa.R.Crim.P. 1106(d).

In the instant case, voir dire was conducted entirely by the trial judge. Prior to commencement of voir dire, counsel were given an opportunity to suggest questions to be asked during voir dire. (N.T. 11/17/87 at 11-13). Though defense counsel did suggest some questions, counsel did not specifically request any questions regarding whether members of the venire or close family members had been the victim of a violent crime or whether members of the venire had prior jury service. After indicating which of the suggested questions he would ask, the trial court commenced its voir dire, which included a question as to whether any of the members of the venire or close family members had been the victim of a robbery. Seven members of the venire responded affirmatively; four were excused when they expressed doubts as to their ability to render a fair verdict in a robbery case based upon their prior experiences. (N.T. 11/17/87 at 16-21). The other three indicated that they believed they could render a fair verdict despite their prior experiences; and so, they were permitted to remain on the venire. Cf. Commonwealth v. Lane, 521 Pa. 390, 394, 555 A.2d 1246, 1249 (1989); Commonwealth v. DeHart, supra, 516 A.2d at 663; Commonwealth v. Slocum, supra, 559 A.2d at 54 n. 5.

Defense counsel raised several objections during voir dire. First, he argued unsuccessfully that the venire should have been questioned more generally regarding whether they or their close relatives had been a victim of any crime of violence, rather than only regarding robbery. (N.T. 11/17/87 at 29-30). Later, defense counsel objected:

... I can’t even begin to intelligently exercise peremptory challenges with the kind of perfunctory questions that this Court engaged in here. I don’t even know the age of these people. I don’t know how long they have been working at their jobs. I don’t know whether or not they have ever had any prior jury service. I don’t know if they had contact with people in law enforcement. These people that say they work for the Federal Government, I don’t even know what kind of work they do. Are they secretaries? Are they running a branch of government? Are they head of the department? I have absolutely no idea. How can I possibly effectively exercise my peremptory challenges?
So I would ask the Court to conduct a more detailed examination of these jurors. I don’t know how long they have lived in the area where they lived. I would ask the Court to inquire as to that.

(N.T. 11/17/87 at 38-39). (Emphasis added). This objection was rephrased and renewed twice during the jury selection process. (N.T. 11/17/87 at 44-45, 48).

On appeal, appellant renews his contention that the trial court erred in refusing to question the venire generally whether they or close family members had been victimized by violent crime, rather than questioning them specifically as to robbery only. We find no abuse of discretion. In denying that request, the trial court acted in accordance with well established precedent that questions regarding criminal victimization in general are overbroad. Commonwealth v. Johnson, 358 Pa.Super. 435, 441-42, 517 A.2d 1311, 1314-15 (1986); Commonwealth v. Davis, 282 Pa.Super. 51, 422 A.2d 671, 672 (1980); Commonwealth v. Mosley, 261 Pa.Super. 198, 262, 395 A.2d 1384, 1386 (1978). Contrary to appellant’s assertions, we do not find that voir dire was unduly restricted in this respect.

Appellant also contends that the trial court abused its discretion by refusing to question the members of the venire as to whether they had previous jury service. During voir dire counsel incorporated this issue in his general objection that the scope of voir dire was inadequate to foster intelligent use of peremptory challenge^. (N.T. 11/17/87 at 88-39, 44-45, 48). On appeal, howeVer, this objection has been cast in an entirely different light)-. Appellant now argues that inquiry regarding prior jury service was required because of reports of improper pressures being put upon juries by judges and their clerks in Philadelphia County. (Appellant’s Brief at 56-59). He cites Commonwealth v. Syre, 348 Pa.Super. 110, 501 A.2d 671 (1985), rev’d 513 Pa. 1, 518 A.2d 535 (1986), as a case in which such misconduct occurred, and argues that the venire should have been questioned on voir dire to determine whether they had prior jury service experience, and then whether such misconduct occurred during their prior jury service. We find no abuse of discretion in the trial court’s refusal to question the venire members regarding prior jury service.

Initially, we note that we reject entirely appellant’s novel claim that prior jury service should have been disclosed because of the possibility that jurors might have been prejudiced, presumably against the accused, based upon misconduct (designed to improperly influence the jury to convict) which might have occurred at a previous unrelated trial. This novel theory was not raised in the trial court and must therefore be deemed to have been waived. Commonwealth v. Johnson, 355 Pa.Super. 123, 140-41, 512 A.2d 1242, 1251 (1986).

The tenor of the objection originally raised during voir dire was that prior jury service was a fact relevant to the “intelligent” exercise of peremptory challenges. (N.T. 11/17/87 at 38-39, 44-45). On appeal, appellant briefly renewed this claim, though he focused the main thrust of his argument on the novel contention discussed and rejected above. (Appellant’s Brief at 55-56). Though this objection was properly preserved, we find it to be meritless.

Criminal defense counsel have traditionally preferred new jurors to experienced jurors, and have been advised in treatises, practice manuals, and law reviews to attempt to discover prior jury service during voir dire and then consider that factor in exercising peremptory challenges. See e.g. Rosenblatt, Techniques for Jury Selection, 2 Crim.L.Bull. 14, 19 (1966). Recent empirical research has produced mixed results regarding the significance of prior jury service, with some studies showing a small but statistically relevant correlation between juror experience and the likelihood of conviction, and other studies showing no correlation. Compare Dillehay & Nietzel, Juror Experience and Jury Verdicts, 9 Law & Hum.Behav. 179, 179-91 (1985) (noting a small but statistically significant correlation) and Kerr, Effects of Prior Juror Experience on Juror Behavior, 2 Basic & Applied Soc.Psych. 175, 175-93 (1981) (finding no correlation).

Jury selection techniques have “progressed” in recent years from reliance on the “conventional wisdom” of experienced members of the bar to increased reliance upon computer analysis of “characteristic based statistical probabilities.” See generally Schwartz & Fleming, To Know Your Jurors, Know Their Community, 2 CrimJustice 21, 21-3 & 47-8 (1988); Roberts, Is This a Case That Warrants a Jury and Trial Consultant, 10 Trial DiplJ. 15, 15-23 (1987); Winston & Winston, The Use of Sociological Techniques in the Jury Selection Process, 6 J.Crim.Bef. 79, 79-97 (1980). Though the bounds of the evolving constitutional restrictions upon group based discrimination in the exercise of peremptory challenges are as yet loosely defined, it is generally agreed, however, that to the extent peremptory challenges are allowed, there is no constitutional objection to the exercise of peremptory challenges in accordance with either “conventional wisdom” or “characteristic based statistical probabilities” so long as discrimination on the basis of race, religion, sex, or national origin does not result. See Comment, The Prosecutor’s Right to Object to a Defendant’s Abuse of Peremptory Challenges, 93 Dickinson L.Rev. 143, 143-67 (1988); Serr & Manley, Racism, Peremptory Challenges, and the Democratic Jury, 79 J.Crim.L. & Crim. 1, 1-65 (1988); Note, Batson v. Kentucky and the Prosecutorial Peremptory Challenge, 74 Va.L. Rev. 811, 811-41 (1988); Note, Discrimination By the Defense: Peremptory Challenges After Batson v. Kentucky, 88 Columb.L.Rev. 355, 355-68 (1988); Comment, The Prohibition of Group Based Stereotypes in Jury Selection Procedures, 25 Vill.L.Rev. 339, 339-63 (1980).

This does not mean, however, that trial courts are required to permit counsel to inquire as to any matter which conventional wisdom or computer analysis would deem relevant to the intelligent exercise of peremptory challenges. Indeed, the scope of such inquiry would be virtually limitless. In 1936, Clarence Darrow explained:

Choosing jurors is always a delicate task. The more a lawyer knows of life, human nature, psychology, and the reactions of the human emotions, the better he is equipped for the subtle selection of his so-called ‘twelve men, good and true.’ In this undertaking, everything pertaining to the prospective juror needs to be questioned and weighed: his nationality, his business, religion, politics, social standing, family ties, friends, habits of life and thought; the books and newspapers he likes and reads, and many more matters that combine to make a man; all of these qualities and experiences have left their effect on ideas, beliefs and fancies that inhabit his mind.

Darrow, “Attorney for the Defense: How to Pick a Jury,” Esquire Magazine (May 1936), reprinted in Darrow, Verdicts Out of Court, at 311-24 (1963). (Emphasis added). Darrow found virtually every aspect of a juror’s life relevant to the intelligent exercise of peremptory challenges. Today, social scientists aided by computer analysis would be likely to find relevance in factors even Clarence Darrow might have deemed irrelevant. For example, a recent study suggested that significant statistical probabilities regarding jurors’ views toward capital punishment could be gauged by such seemingly innocuous factors as how much television jurors watched, or how well they liked their neighbors. See Winston & Winston, supra, 6 J.Crim.Def. at 81. Voir dire as intrusive as a social scientist aided by computer analysis might desire in order to assist counsel to “intelligently” exercise peremptory challenges would be likely to leave the venire without a stitch of privacy or a shred of dignity. See Commonwealth v. Slocum, supra, 559 A.2d at 54-55.

However, in Pennsylvania, neither the prosecution nor the defense have a “right” to voir dire on matters addressed solely to the “intelligent” or tactical use of peremptory challenges. See Commonwealth v. England, supra; Commonwealth v. Hathaway, supra. Commonwealth v. Slocum, supra, 559 A. 2d at 55. Rather, voir dire may properly be limited to questioning reasonably designed to uncover bias or prejudice harbored by individual members of the venire.

The discovery of factors such as prior jury service, which in no way call into question a particular juror’s ability to render a fair and impartial verdict, is simply not within the scope of proper voir dire inquiry — regardless of the statistical probabilities attendant to prior jury service in general. Consequently, we find no abuse of discretion in the trial court’s refusal to question the venire as to whether they had prior jury experience. See Commonwealth v. Johnson, 452 Pa. 130, 136, 305 A.2d 5, 8 (1973); Commonwealth v. Corbin, 426 Pa. 24, 26, 231 A.2d 138, 139 (1967); Commonwealth v. Hathaway, supra, 500 A.2d at 448; accord Annotation, Voir Dire, 28 ALR Fed. 26, 87-88 (1979 & 1988 Supp.) (collecting cases).

III. MISTRIAL: PHOTOGRAPH BOOKS

Appellant next contends that the trial court erred in failing to declare a mistrial when Mrs. Flounders indicated that she had viewed “books” of photographs at the police station, though she also testified that she did not identify appellant’s photograph. Mr. Keisler testified that he had identified appellant’s photograph from several hundred photographs. Appellant reasons that taken together, the testimony conveyed the message that the photographs were “mug shots,” and therefore, he was prejudiced by this indirect reference to unspecified prior criminal acts. We find no merit in this contention.

A motion for a mistrial is addressed to the sound discretion of the trial court and a decision on such a motion will not be reversed absent a clear abuse of discretion. See Commonwealth v. Johnson, 516 Pa. 527, 532-34, 533 A.2d 994, 997 (1987); Commonwealth v. Howard, 375 Pa.Super. 43, 52, 543 A.2d 1169, 1174-75 (1988). Mrs. Flounders’ vague reference to the books of photographs she viewed at the police station and Mr. Keisler’s reference to hundreds of photographs did not require a mistrial. See Commonwealth v. Banks, 513 Pa. 318, 521 A.2d 1 (1987), cert. denied 484 U.S. 873, 108 S.Ct. 211, 98 L.Ed.2d 162 (1987); Commonwealth v. Brown, 511 Pa. 155, 512 A.2d 596, (1986); Commonwealth v. Cambridge, 386 Pa.Super. 542, 563 A.2d 515 (1989). Moreover, the trial court sustained counsel’s objection to Mrs. Flounders’ vague reference and permitted the prosecution to move on with its questioning regarding relevant identification evidence without focusing undue attention on her relatively insignificant remark. We find no error or abuse of discretion in this course of conduct.

IV. JURY CHARGE

Appellant next contends that the trial court erred by failing to properly charge the jury regarding the impeachment and evidentiary value of prior inconsistent statements, the burden of proof, and identification issues. He argues that the jury charge on these issues was misleading, incomplete, and erroneous.

The standard for review for challenges to the trial court’s charge to the jury was set forth at length in Commonwealth v. Alvin, 357 Pa.Super. 509, 518-19, 516 A.2d 376, 381 (1986). See also Commonwealth v. Grove, 363 Pa.Super. 328, 341-42, 526 A.2d 369, 376 (1987), allocator denied 517 Pa. 630, 539 A.2d 810 (1987). Applying this standard, we find no merit in appellant’s challenges to the jury charge given in this case.

Because appellant failed to establish sufficient evidence that a prior inconsistent statement had been made by the Commonwealth witness, no special instruction regarding such evidence was necessary or appropriate. See Commonwealth v. Freeman, 356 Pa.Super. 332, 343, 514 A.2d 884, 890 (1986); see generally Commonwealth v. Grove, supra, 526 A.2d at 378 (a jury charge may only be given where there is evidence to support the charge). Assuming, arguendo, that evidence of a prior inconsistent statement, though weak, was sufficient to warrant a jury instruction, we find the trial court’s general instruction that the jury should consider whether the witnesses were contradicted or contradicted themselves in assessing credibility, was adequate to cover the point.

We note that appellant was not entitled to a charge on the substantive use of prior inconsistent statements. The distinction between substantive and merely corroborative evidence is addressed solely to the issues of whether the evidence may be admitted, and whether it may be considered in determining whether a burden of proof or production has been met. See Commonwealth v. McMillan, 376 Pa.Super. 25, 38-41, 545 A.2d 301, 308-09 (1988). Here, as in McMillan, the prior inconsistent statement had been admitted into evidence, and appellant bore no burden of production or proof. Consequently, the characterization of the statement was not relevant, and no jury instruction regarding the corroborative or substantive use distinction was necessary or appropriate. Id.

Finally, the trial court’s charges regarding the Commonwealth’s burden of proof and the evaluation of the eyewitness identification evidence were correct and complete. Reviewing the charge as a whole, and considering appellant’s contentions individually and collectively, we find no error with respect to the charge to the jury.

V. MISTRIAL: PROSECUTOR’S SUMMATION

Appellant next contends that prosecutorial misconduct during the prosecutor’s closing argument warranted a mistrial and that the trial court erred in failing to grant appellant’s request for one following the conclusion of the prosecutor’s summation. Appellant argues that the prosecutor mischaracterized the defense, derided defense counsel, and improperly injected his personal opinions into the argument.

The standard for review of such claims was recently set forth at length in Commonwealth v. Johnson, supra, 533 A.2d at 997; see also Commonwealth v. Howard, supra, 543 A.2d at 1174-75. Applying this standard, we find no reason to reverse the trial court’s decision to deny the motion for a mistrial.

Upon careful review of the record, we find no merit in the suggestion that the prosecutor improperly mischaracterized the defense or derided defense counsel. Rather, the prosecutor merely made appropriate, albeit unflattering, inferences from the evidence presented. Moreover, while it appears that the prosecutor improperly personalized his argument to the jury by using language which may have suggested personal belief, rather than professional argument, we do not find that the prosecutor’s arguably improper conduct in that respect undermined the truth determining process. Cf. Commonwealth v. Slocum, supra, 559 A.2d at 56-57. To the contrary, while both prosecution and defense took full advantage of the loose reign held by the trial court over those arguments, we do not believe that the reign was so loose as to permit the jury to be stampeded by counsels’ arguments. Finally, we again note and emphasize that in such matters we are inclined to defer to the trial court’s superior vantage in accessing the probable impact of the challenged conduct on the jury. See Commonwealth v. Slocum, supra, 559 A.2d at 57; Commonwealth v. Howard, supra, 543 A.2d at 1179 (Kelly, J., concurring). The trial court found no grounds for a mistrial. We find no abuse of discretion with respect to the trial court’s ruling on the mistrial motion.

CONCLUSION

Based upon the foregoing, judgment of sentence is affirmed.

      . Though appellant emphasizes the fact that career criminal program cases were, at the time of this case, assigned to three specially designated judges, a trial judge’s general awareness of the fact of a serious but unspecified criminal record based upon the judge's knowl- “ edge that the case was assigned to the career criminal program might arise even in absence of such special assignments, as the appearance of prosecutors specially assigned to the program might arguably convey the same information to at least some of the judges before whom the prosecutor appears. The discussion of the general awareness arising from the assignment of the case to specially designated judges thus applies as well to whatever general awareness might arise from the appearance of a specially designated career criminal prosecutor before non-designated judges.

      . At the time of sentencing, additional charges were pending against appellant in two unrelated cases.

      . See generally Memorandum: Selection Criteria Revisions (Phila.D.A. 1983); Report and Evaluation: Philadelphia Career Criminal Program (Citizens Crime Comm. 1980); Concept Paper for a Comprehensive Career Criminal Program in Philadelphia (Phila.D.A. 1978).

      . In the brief to this Court, appellant states:
      Here, appellant had no prior convictions. His "record” consists only of juvenile adjudications, which are not understood under the law to be convictions. Yet the only written guidelines available to the defense, contained in a January 1983 memorandum from the prosecutor’s office, made no reference to juvenile adjudications as satisfying the "recidivist” requirement of the CCP. The memo referred only to “convictions.” The prosecutor did not contest or deny the continued validity of those guidelines (which were submitted as part of the defense’s motion), and did not suggest that any change in policy had been made that would include prior juvenile adjudication.

      (Appellant’s Brief at 68). (Emphasis added). Appellant overstates his case. Review of the record of the pre-trial hearing reveals that the trial judge, who as a specially assigned career criminal program judge was well aware of the program operations and the previous unsuccessful challenges to the program, denied counsel’s multi-prong challenge without requesting or even permitting response by the Commonwealth. (N.T. 11/16/87 at 2-6). Appellant’s suggestion on appeal that the Commonwealth conceded the continued applicability of the 1983 selection criteria or appellants narrow construction of those criteria is simply not supported by the record.

      . See Kramer, At a Tender Age, at 8-20 (1988); Greenwood, Selective Incapacitation, at 102-03 (U.S.DeptJust., NIJ 1982) (Greenwood); Williams, supra, 71 J.Crim.L. & Crim. at 93; Boland, Fighting Crime: The Problem of Adolescents, 71 J.Crim.L. & Crim. 94, 94-97 (1980); Peterson & Braiker, Doing Crime (U.S.DeptJust., NIJ 1980); Vane Dine, Conrad & Dinitz, The Incapacitation of the Chronic Thug, 70 J.Crim.L. & Crim. 125, 125-34 (1979) (reporting study results but disputing the policy implications); Petersilia, Greenwood & Lavin, Criminal Careers of Habitual Felons, at 106, 148-49 (1978); Boland & Wilson, Age, Crime & Punishment, 51 Pub.Interest 22 (1978); see also Strasburg, "Recent National Trends in Serious Juvenile Crime,” in Violent Juvenile Offenders, at 5-30 (Mathias, DeMuro & Allinson, eels., N.C.C.D.1984) (analyzing juvenile crime statistics generally); Wolfgang, "Crime in a Birth Cohort," in Crime & Justice Annual, at 112 (Aldine, ed., 1973); Wolfgang, Figlio & Sellin, Delinquency in a Birth Cohort, passim (1972).

      . See Greenwood, supra at n. 5, at 98 (prior felony convictions were not found to be a good predictor of “high rate” recidivism); Williams, supra, 71 J.Crim.L. & Crim. at 92 (“By the time a person is old enough to have several prior convictions, he is old enough to have reduced his propensity toward crime.”); Boland, supra, 71 J.Crim.L. & Crim. at 94 (focusing on prior felony convictions “will not result in the incarceration of the most active offenders” — juveniles and young adults); accord Taylor, DA’s Special Teams Win Stiffer Sentences for 'Career Criminals’: But Do They Crack Down on Worn-Out Offenders Instead of Active Ones?, Wall Street Journal, p. 1, col. 1 (May 11, 1982).

      . Williams, supra, 71 J.Crim.L. & Crim. at 93; Boland, supra, 71 J.Crim.L. & Crim. at 97.

      . In a related development, the Office of Juvenile Justice and Delinquency Prevention of the Federal Department of Justice has recently completed a two-year study of a juvenile career criminal program known as the Habitual Serious and Violent Juvenile Offender Program which was modeled on the LEAA’s adult career criminal program. The pilot program was considered successful, and was recommended for use in medium to large sized urban jurisdictions. See
        Speirs, Targeting Serious Juvenile Offenders for Prosecution Can Make a Difference, No. 211 N.IJ.Rept. 9, 9-12 (Sept.-Oct.1988). Ironically, the study reports that public defenders criticized the various selection criteria of the thirteen separate pilot program units as too rigid and indicated that "they would have preferred a more flexible selection process.” Speirs, supra, at 11.

      . See generally Career Criminal Program Briefing Paper No. 7: Selection Criteria, supra (generally discussing factors in addition to prior record selection criteria which affect assignment to the program). We note, for example, that only 28% or 1,179 of the 4,238 cases which met the prior record selection criteria of the New York career criminal unit in 1982 were ultimately assigned to the unit for augmented prosecution. Gay, supra, at 29. Reasons for not assigning to the unit cases which met the threshold selection criteria included the relatively minor nature of the current offense, evidentiary weaknesses including reluctant witnesses and relationships between the accused and the alleged victim, and conflicts with pending investigations. Id.

      . There is considerable disagreement among attorneys, judges and commentators, as well as diversity in the law of the various common law jurisdictions, regarding the proper scope of voir dire as it relates to the exercise of peremptory challenges. See Annotation, Right of Counsel in Criminal Case Personally to Conduct Voir Dire Examination of Prospective Jurors, 73 A.L.R.2d 1187, 1195-98 (1960), 73-75 A.L.R.2d Supp. 40, 40-41 (1986 & 1988 Supp.) (noting the split of opinion as to whether defendants have a right to voir dire on matters addressed solely to the exercise of peremptory challenges); cf. East, Jury Packing: A Thing of the Past, 48 MLR 518, 519-20 (1985) (contrasting the restricted inquiries permitted under English law with "wide-open" voir dire permitted in American courts). Pennsylvania’s policy of vesting the trial court with broad discretion to determine the appropriate scope of voir dire based upon the facts and circumstances of the particular case represents a middle ground position which seeks to balance legitimate conflicting interests in the efficient administration of justice and the privacy of venire members, on one hand, with equally legitimate interests in the discovery and disclosure of grounds for challenges for cause and the effective use of peremptory challenges to remove those whose impartiality might be questioned even though grounds for a challenge for cause cannot be established, on the other hand. See Commonwealth v. Slocum, supra, 559 A.2d at 53 n. 3.

      . We note, additionally, that the trial court’s solicitousness for the legitimate privacy interest of the members of the venire by rejecting overbroad voir dire questions was also demonstrated by the trial court’s decision not to ask an allegedly overbroad question proposed by the prosecution, i.e. whether any members of the venire had ever been charged with or convicted of a crime. (N.T. 11/17/87 at 13).

      . We note that the only instance of alleged misconduct reported by appellant in support of his assertion of general misconduct is that alleged in Commonwealth v. Syre, supra. Our Supreme Court, however, held in Syre that there was sufficient evidence to support the trial court’s finding that no misconduct occurred. 518 A.2d at 535-36. Moreover, even assuming that the issue had been properly raised and preserved, and misconduct had occurred in other cases as suggested, we would still find that the trial court would have been acting within its sound discretion in refusing to conduct voir dire regarding matters of such extremely limited probability and such tenuous relevance to the qualifications of the members of the venire to serve in the present case.

      . Though cloaked in the scientific garb of computer analysis, "characteristic based statistical probability” indicators for jury selection remain as conjectural as to particular members of the venire as the outdated "conventional wisdom” they have begun to replace. Neither tell us anything relevant to the disposition of a challenge to a particular member of a venire for cause.
      We note that a statistically significant correlation between belief in the jury system and the likelihood of conviction has also been reported. See Sealy, Another Look at Social Psychological Aspects of Juror Bias, 5 Law & Hum.Behav. 187, 187-200 (1981). Such “bias” is hardly likely, though, to impress trial or appellate courts as a legitimate basis upon which to question or challenge prospective jurors. See Commonwealth v. Slocum, supra, 559 A.2d at 55 n. 7.


source: Caselaw Access Project

license: Public Domain

text:
      567 A.2d 739
    Sandra May KRESGE, Appellee, v. KEYSTONE INSURANCE COMPANY, Appellant. Sandra May KRESGE, Appellant, v. KEYSTONE INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 21, 1989.
    Filed Dec. 22, 1989.

      Howard A. Rothenberg, Scranton, for appellant in No. 1115 and appellee in No. 1116.
    Frank T. Blasi, Scranton, for appellant in No. 1116 and appellee in No. 1115.
    Before TAMILIA, KELLY and CERCONE, JJ.
   KELLY, Judge:

The issue presented in this appeal is whether 75 Pa.C.S.A. § 1714 barred recovery of first party benefits, as a matter of law, by a party who claimed to no longer possess an inoperable, uninsured vehicle, which nonetheless remained registered in that party’s name in Pennsylvania at the time of the accident from which the benefits claim arose. We find that recovery was barred.

The relevant facts and procedural history are as follows. On January 10, 1987, Sandra Mae Kresge (“Kresge”) was seriously injured in an accident while riding as a passenger in an automobile insured by Keystone Insurance Company (“Keystone”). The insurance policy provided up to fifty thousand dollars in first party benefits to any passenger injured while riding in an insured automobile. Kresge applied to Keystone for first party benefits under the insured’s policy. Keystone denied Kresge’s claim stating that because Kresge was the owner of an uninsured registered vehicle she was ineligible under 75 Pa.C.S.A. § 1714 to recover first party benefits. Kresge then filed this suit against Keystone challenging the denial of her claim by Keystone.

In sworn deposition testimony, Kresge indicated that she had purchased and registered a used car in her name in 1985. She also indicated that she had secured the required insurance coverage for that vehicle at the time of its purchase. Kresge admitted, however, that despite the fact the vehicle remained registered in her name, she had allowed her insurance to lapse. She claimed, by way of justification for allowing the insurance to lapse, that several mechanical problems had arisen with the car, she had stopped driving it, and she had taken it to a junkyard prior to the date of the accident from which her claim for first party benefits arose. (See N.T. 3/23/88 at 8-14).

Both sides filed motions for summary judgment. Keystone argued that, even assuming for the sake of the argument that the uninsured vehicle registered in Kresge’s name at the time of the accident was both inoperable and out of Kresge’s possession, Kresge was nonetheless barred from recovery of first party benefits under the clear mandate of 75 Pa.C.S.A. § 1714, as a matter of law. Kresge responded that Section 1714 was not intended to apply to cases such as hers, and that if Section 1714 did not bar recovery, she was entitled to summary judgment on the basis of her “uncontradicted” averments.

The trial court denied both parties’ motions for summary judgment. However, the trial court stated in its order that Kresge may be eligible for first party benefits. Later, the trial court amended its order, certifying the Section 1714 issue as a controlling issue of law for an immediate interlocutory appeal under 42 Pa.C.S.A. § 702(b). This Court granted the parties permission to appeal from that interlocutory order. These timely consolidated appeals followed.

The primary issue presented is whether the terms of 75 Pa.C.S.A. § 1714 should be construed to require the denial of first party benefits to a party who neither operated nor possessed an inoperable, uninsured vehicle, which nonetheless remained registered in that party’s name at the time of the accident from which a claim for first party benefits is brought. In order to decide this issue we must look to the pertinent part of 75 Pa.C.S.A. § 1714 which provides:

An owner of a currently registered motor vehicle who does not have financial responsibility [insurance or coverage] ... cannot recover first party benefits.

75 Pa.C.S.A. § 1714. (Emphasis added). The plain, unqualified language of the statute plainly precludes recovery of the benefits sought.

Previous attempts by first party benefit claimants to evade the ineligibility mandate of Section 1714 by asserting unwritten but purportedly intended exceptions to Section 1714 for inoperable uninsured vehicles and for uninsured vehicles not involved in the accident from which the benefit claim arose have been unequivocally rejected. See DeMichele v. Erie Insurance Exchange 385 Pa.Super. 634, 561 A.2d 1271 (1989); Mowery v. Prudential Property and Casualty Insurance Co., 369 Pa.Super. 494, 535 A.2d 658 (1988); Allen v. Erie Insurance Co., 369 Pa.Super. 6, 534 A.2d 839 (1987). In each of these cases we found that: Section 1714 is free from all ambiguity; the conspicuous absence of any exceptions must be deemed to have been intentional; and, in order to be eligible to receive first party benefits a person must have the required insurance on any and every vehicle currently registered in that person’s name in Pennsylvania at the time of the accident in question. The suggestion of an unwritten but purportedly intended exception to the unambiguous terms of Section 1714 is no more tenable here than were the similar suggestions soundly rejected in DeMichele, Mowery, and Allen.

Our current financial responsibility requirements are premised on a belief that the expense of automobile liability insurance to the premium paying public throughout Pennsylvania would be reduced and be more fairly distributed by implementing legislative measures including Section 1714, designed to reduce the number of uninsured motorists consuming the benefits of liability insurance without contributing toward their expense. The exceptions suggested here, like those suggested in DeMichele, Mowery, and Allen, could foreseeably all but eliminate the intended benefits of the statute by rendering it problematically ambiguous, and by providing limitless opportunities for fraud. Two considerable difficulties are immediately apparent. First, what degree of inoperability or degree of dispossession would be required to bring a case within the suggested exceptions? Second, how would an insurance company know, let along prove, when possession was transferred or when a car became inoperable? The expense of the litigation spawned by such ambiguities and opportunities alone could remove the desired economic benefit — not to mention the expense attributable to the premium avoidance which would result. Fortunately, our legislature has included no such ambiguities, and has provided no such opportunities for fraudulent non-premium paying claimants to reach through such holes in insurance companies’ mythical “deep pockets” to steal from the premium paying public.

Kresge may in fact have genuinely transferred her inoperable, uninsured vehicle to the junkyard before the accident in question. We in no way suggest fraud on Kresge’s part. Indeed, for the purpose of this appeal we assume her averments were true and provable. Nonetheless, our financial responsibility law was written to ensure reciprosity and prevent fraud in the aggregate of cases, and in that respect the unqualified ineligibility mandate of Section 1714 is both rational and reasonable.

By the clear and unambiguous terms of Section 1714, the only way a vehicle owner can be absolved of the responsibility to insure a vehicle registered in that person’s name, whether or not the vehicle remains operable or even in that person’s possession, is to have the registration of the vehicle properly terminated or transferred. See 75 Pa.C.S.A. §§ 1117, 1334 et seq. A person may not receive first party benefits in Pennsylvania if at the time of the accident for which such benefits are claimed that person had any vehicles registered in Pennsylvania in that person’s name which were not insured as required. There are no exceptions.

Accordingly, we resolve the controlling issue of law presented by concluding that Kresge may not recover first party benefits, as a matter of law, based upon her sworn admissions. The case is remanded for proceedings consistent with this Opinion.

Jurisdiction is relinquished.


text:
    567 A.2d 1044
    COMMONWEALTH of Pennsylvania v. Walter PORRECA, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 31, 1989.
    Filed Oct. 17, 1989.
    Reargument Denied Dec. 21, 1989.

      Michael C. Cowley, Scranton, for appellant.
    Gregory B. Abeln, Deputy Atty. Gen., Harrisburg, for Com., appellee.
    Before KELLY, JOHNSON and MELINSON, JJ.
   KELLY, Judge:

Appellant, Walter Porreca, appeals from an order denying allowance to withdraw a guilty plea following imposition of a sentence which exceeded the non-binding sentencing recommendation made by the Commonwealth in accordance with the terms of a court approved plea agreement, as well as the sentence which appellant had previously been led to believe would be imposed under a written agreement with a deputy attorney general which had not been submitted for judicial approval under Pa.R.Crim.P. 319. We affirm.

The relevant facts and procedural history may be summarized as follows. Between 1980 and 1982, appellant was a managing participant in a large scale stolen car ring. In December 1984, though he had been out of the operation for approximately a year and a half, appellant became aware that the police were investigating his previous involvement in the operation. Appellant approached the police and voluntarily gave a statement which implicated himself in 112 crimes relating to the stolen car ring.

Subsequently, in 1985, appellant entered into a written plea agreement with the Commonwealth which required his cooperation with a police investigation of the operation in return for a promise to reduce the charges which would be brought against him from 112 various criminal counts to one count each of corrupt organization and theft by unlawful taking, and the further promise of a prosecutorial recommendation of a sentence of no more than “county time,” i.e., a five year maximum sentence. See 42 Pa.C.S.A. § 9762. This written plea agreement, signed by the parties, was not taken before a common pleas court judge for the required judicial approval at that time. See Pa.R.Crim.P. 319.

For three years, appellant provided the police with complete and ungrudging cooperation. This cooperation involved repeated service as a “wired” informant, and as such he was required to be on call for service around the clock as needed. It was the opinion of the investigating officer who coordinated appellant’s activities that appellant had acted above and beyond the call of duty imposed by his agreement, and had in fact knowingly put his life in jeopardy. The officer also indicated that appellant’s cooperation was the critical factor in securing 45 to 50 of the 81 convictions which resulted from the investigation.

After appellant’s cooperation had been substantially completed, he was brought before the common pleas court for entry of his guilty plea in accordance with the 1985 plea agreement. The judge assigned, however, indicated his absolute unwillingness to accept any plea agreement in this case which provided for a specific sentence to be imposed by the trial court at sentencing. No plea was accepted at that time.

Subsequently, a second, less favorable, plea agreement was submitted for approval of the trial court, which specifically characterized the prosecution’s sentencing recommendation as not binding on the sentencing judge. The agreement provided in pertinent part:

12. The defendant understands that the court is not a party to and is not bound by this agreement nor by any recommendations made by the parties. Thus, the court is free to impose upon the defendant any sentence up to and including the maximum sentence of fine and imprisonment together with the cost of prosecution.

13. If the court imposes a sentence with which the defendant is dissatisfied, the defendant will not be permitted to withdraw any guilty plea for that reason alone, yet if the Court refuses to concur with any other aspects of this Agreement, he will be allowed to withdraw his guilty plea pursuant to the Pennsylvania Rules of Criminal Procedure.

(Plea Agreement 9/11/86). (Emphasis added). The plea, thus expressly and unequivocally conditioned, was accepted by the judge originally assigned.

That judge later recused himself as the result of his contemporaneous recusal from an unrelated case in which appellant was also involved. This case was assigned then to a second judge for sentencing.

At sentencing, in accordance with the plea agreement, the Commonwealth provided extended argument (described aptly by the sentencing court as eloquent) in favor of the imposition of a maximum sentence of no more than county time. Counsel for appellant echoed and expanded upon the Commonwealth’s arguments in favor of leniency, and suggested that a sentence of probation be imposed.

Nonetheless, the trial court imposed an aggregate term of two to six years imprisonment. As all sentences with more than a five year maximum must be served in a state rather than a county facility, 42 Pa.C.S.A. § 9762, the sentence imposed was not within the bounds of the 1985 unapproved plea agreement, or the non-binding prosecutorial recommendation made in accordance with the terms of the plea agreement actually accepted and approved by the trial court.

Appellant petitioned to withdraw his plea based upon the sentencing judge’s non-concurrence in the Commonwealth’s sentencing recommendation and the failure to sentence consistently with the 1985 unapproved plea agreement. Appellant also contended that the plea colloquy was inadequate. The motion was denied, and this timely appeal followed.

I. Rejection of Prosecution’s Leniency Recommendation

Appellant contends that the rejection of the Commonwealth’s expressly non-binding sentencing recommendation mandates that allowance to withdraw his plea be granted. We cannot agree.

On this issue, the Commonwealth as appellee has come to the aid of its cooperative informant and argues forcefully that the trial court was required to follow the Commonwealth’s sentencing recommendation or to reject the plea. In support of this argument, the Commonwealth cites the following dicta from our Supreme Court’s decision in Commonwealth v. Bennett, 512 Pa. 525, 517 A.2d 1248 (1986), “if the court does not concur in the terms of the plea agreement and defendant petitions to withdraw the plea in a timely manner, the court must permit the withdrawal of the plea.” 517 A.2d at 1251-52.

The Commonwealth’s reliance upon this excerpt is misplaced. First, as the appeal was decided against Bennett based upon his failure to file a timely motion to withdraw his plea, the excerpt (as attempted to be applied here) is mere dicta without the authority of binding precedent. Moreover, the offered application of the dicta to the facts of this case misconstrues the limits placed upon the trial courts by Pa.R.Crim.P. 319, to which our Supreme Court was referring in Bennett.

In Commonwealth v. Osteen, 381 Pa.Super. 120, 127-28, 552 A.2d 1124, 1128 (1989), this Court recently rejected a claim that a plea agreement had been broken and that allowance to withdraw the plea was mandated in circumstances very similar to those presented here. In Osteen, this Court emphasized that the limited nature of the plea agreement was clearly and unequivocally expressed to the defendant, who nonetheless opted to accept even the limited plea agreement as a true bargain.

The limits of the plea agreement finally approved in this case were even more clearly expressed to appellant herein, than the limits of the agreement in Osteen had been explained to Osteen. Here, the trial court expressly rejected the original proposed plea agreement which had included the promise of an unconditioned and presumably binding recommendation of no more than county time, and then subsequently accepted a plea agreement which included an expressly conditioned non-binding recommendation of no more than county time. Under those circumstances, the express and unequivocal terms of appellant’s plea agreement, “created no expectation whatsoever as to what sentence would be imposed.” Commonwealth v. Osteen, supra, 552 A.2d at 1128.

Thus, it can be fairly said that our Supreme Court’s dictum in Bennett, that Rule 319 “is simply a directive to the court that if the court does not concur with the terms of the plea agreement and a defendant petitions to withdraw the plea in a timely manner, the court must permit the withdrawal of the plea”, was in no sense contravened. The trial court in fact did not reject “the terms of the plea agreement” 517 A.2d at 1251-52 (emphasis added). Cf. Commonwealth v. Kioske, 337 Pa.Super. 593, 487 A.2d 420 (1985) (although the terms of plea agreements must be enforced, the terms were not in fact violated; hence, no relief was appropriate). Succinctly, the trial court’s concurrence in the Commonwealth’s sentencing recommendation was expressly and unequivocally excluded from the “terms of the plea agreement” in this case.

In an open plea agreement, there is an agreement as to the charges to be brought, but no agreement at all to restrict the prosecution’s right to seek the maximum sentences applicable to those charges. At the other end of the negotiated plea agreement continuum, a plea agreement may specify not only the charges to be brought, but also the specific penalties to be imposed. In between those extremes there are various options, including an agreement to make no recommendation or, as here, an agreement to make a favorable but non-binding recommendation. So long as the limits of the agreement are plainly set forth on the record, understood and agreed to by the parties, and approved by the trial court, we find no impediment in Bennett or Pa.R.Crim.P. 319(b) to the offer, acceptance, performance or enforcement of such plea agreements. Cf. Commonwealth v. Osteen, supra, 552 A.2d at 1128, citing Commonwealth v. Shaffer, 498 Pa. 342, 346, 446 A.2d 591, 592-93 (1982). Therefore, we find that appellant’s motion to withdraw his plea based upon the sentencing court’s nonconcurrence in the prosecution’s expressly and unequivocally non-binding sentencing recommendation was properly denied.

II. Breach of the 1985 Unapproved Plea Agreement

Appellant also argues that the trial court erred in failing to permit him to withdraw his plea based upon the trial court’s decision not to exercise its sentencing discretion consistently with the terms of the written, substantially performed, but judicially unapproved plea agreement which was entered into by appellant (uncounselled) and a deputy attorney general in 1985. In dismissing this claim, we find it appropriate to discuss the legal significance of the judicially unapproved plea agreement generally, in the hope that misunderstandings such as occurred here will not be repeated in future cases.

Though numerous cases have been decided in Pennsylvania appellate courts affirming the general proposition that the prosecution may not violate the express terms of an executed plea agreement, the instant case, involving a decision by a trial court judge not to exercise judicial sentencing discretion consistent with the terms of a written, substantially executed, but judicially unapproved plea agreement, is apparently a case of first impression. In addressing the significance of these circumstances, we turn to decisions of the United States Supreme Court for initial guidance.

In Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), the Supreme Court considered a due process challenge based upon a prosecutor’s violation of a condition in a plea agreement that the prosecution would make no recommendation with regard to the sentence to be imposed. The Supreme Court unanimously held that, “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” 404 U.S. at 262, 92 S.Ct. at 499, 30 L.Ed.2d at 445.

Though the Court unanimously concluded that the agreement had been breached, unanimity was broken with respect to the appropriate remedy to be provided. The majority agreed to remand the case to the trial court with directions to either conduct resentencing in accordance with the terms of the plea agreement before a different sentencing judge, or to permit the defendant to withdraw the plea. 404 U.S. at 263, 92 S.Ct. at 499, 30 L.Ed.2d at 433. Justice Douglas agreed with the allowance of discretion in the state courts to determine the appropriate remedy, i.e. specific performance of the plea bargain or allowance to withdraw the plea, but emphasized that the defendant’s choice should be given “considerable, if not controlling, weight inasmuch as the fundamental rights flouted by a prosecutor’s breach of a plea bargain are those of the defendant not the State.” 404 U.S. at 267, 92 S.Ct. at 501, 30 L.Ed.2d at 43; accord Commonwealth v. Williams, 333 Pa.Super. 77, 84, 481 A.2d 1230, 1234 (1984). Justice Marshall, with whom Justices Brennan and Stewart joined, indicated that controlling weight should be given defendant’s preference in such cases. Id., 404 U.S. at 268-69, 92 S.Ct. at 502, 30 L.Ed.2d at 436-37.

In Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984), on the other hand, the Supreme Court unanimously held that an unexecuted, accepted, but subsequently withdrawn, proposed plea agreement could not be considered as an inducement to enter a plea made after the offer was withdrawn, and that Santobello v. New York, supra, did not mandate either allowance to withdraw the plea entered or specific performance of the original proposed plea agreement in such circumstances. The Court explained:

It is only when the consensual character of the plea is called into question that the validity of a guilty plea may be impaired. In Brady v. United States, 397 U.S. 742, 25 L.Ed.2d. 747, 90 S.Ct. 1463 (1970), we stated the applicable standard:

“ ‘[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (;including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e.g. bribes).’ ”
Thus, only when it develops that the defendant was not fairly apprised of its consequences can his plea be challenged under the Due Process Clause. Santobello v. New York, illustrates the point. We began by acknowledging that the conditions for a valid plea “presuppose fairness in securing agreement between an accused and a prosecutor. ... The plea must, of course, be voluntary and knowing and if it was induced by promises, the essence of those promises must in some way be made known.” It follows that when the prosecution breaches its promise with respect to an executed plea agreement, the defendant pleads guilty on a false premise, and hence his conviction cannot stand: “[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.”
Santobello demonstrates why respondent may not successfully attack his plea of guilty. Respondent’s plea was in no sense induced by the prosecutor’s withdrawn offer; unlike Santobello, who pleaded guilty thinking he had bargained for a specific prosecutorial sentencing recommendation which was not ultimately made, at the time respondent pleaded guilty he knew the prosecution would recommend a 21-^year consecutive sentence. Respondent does not challenge the District Court’s finding that he pleaded guilty with the advice of competent counsel and with full awareness of the consequences — he knew that the prosecutor would recommend and that the judge could impose the sentence now under attack. Respondent’s plea was thus in no sense the product of governmental deception; it rested on no “unfulfilled promise” and fully satisfied the test for voluntariness and intelligence.
Thus, because it did not impair the voluntariness or intelligence of his guilty plea, respondent’s inability to enforce the prosecutor’s offer is without constitutional signicance.11
11 Indeed, even if respondent’s plea were invalid, Santobello expressly declined to hold that the Constitution compels specific performance of a broken prosecutorial promise as the remedy for such a plea; the Court made it clear that permitting Santobello to replead was within the range of constitutionally appropriate remedies. See 404 U.S. at 262-263, 30 L.Ed.2d 427, 92 S.Ct. 495 [at 498-99]; see also id., at 268-269, 30 L.Ed.2d 427, 92 S.Ct. 495 [at 502] (Marshall, J., concurring in part and dissenting in part). It follows that respondent’s constitutional rights could not have been violated. Because he pleaded after the prosecution had breached its “promise" to him; he was in no worse position than Santobello would have been had he been permitted to replead.

467 U.S. at 508-10 & n. 11, 104 S.Ct. at 2547-48 & n. 11, 81 L.Ed.2d at 443-44 & n. 11 (citations and footnotes omitted, emphasis added).

As in Mabry v. Johnson, supra, appellant here entered his plea after being fully and unequivocally informed of the limits of the plea agreement actually approved by the trial court. Thus, appellant’s plea in no way was induced by, or was predicated upon, compliance with the Commonwealth’s prior unapproved 1985 plea agreement. Consequently, Santobello v. New York, supra, provides no basis for withdrawal of the plea entered and appellant’s specific claim regarding the 1985 agreement must be rejected.

Our analysis is not concluded. Behind appellant’s narrow claim that he should be permitted to withdraw his plea looms a broader assertion that he has suffered an injustice. He struck a deal with a deputy attorney general and performed his obligations under that deal assiduously. Appellant complains, essentially, that when time came to receive the wages of his labors, he was sent away with short pay.

In point of fact, appellant’s implicit (but mischaracterized) complaint is not that his plea was improperly induced, but that his extensive cooperation in the attorney general’s investigation was improperly induced. The appropriate question then is not whether appellant’s plea was invalid (as appellant argued), but to what extent promises made by the prosecution to obtain a criminal suspect’s cooperation may be specifically enforced on the basis of substantial performance of, and detrimental reliance upon, a judicially unapproved plea agreement.

The principal case upon this issue is United States v. Ford, 99 U.S. 594, 25 L.Ed. 399 (1878), wherein the Supreme Court held that while a prosecutor must be held to terms of cooperation agreements which were within this prosecutor’s authority to offer, due process could confer only an equitable right to a pardon when the immunity alleged to have been promised was not within the authority of the prosecutor to confer. See generally Annotation, Enforceability of Agreement by Law Enforcement Officials Not to Prosecute If Accused Would Help in Criminal Investigation or Would Become Witness Against Others, 32 A.L.R. 4th 990 (1984 & 1988 Supp.); Annotation, Enforceability of Plea Agreement, Or Plea Entered Pursuant Thereto, With Prosecuting Attorney Involving Immunity From Prosecution for Other Crimes, 43 A.L.R.3d 281 (1972 & 1988 Supp.); Annotation, When Is a Federal Prosecutor Bound by Promise of Immunity or Plea Bargains Made by Another Federal Agent, 55 A.L.R. Fed 402 (1981 & 1988 Supp). The authorities cited in the above annotations indicate varying degrees of adherence to the rule announced in United States v. Ford, supra, with some jurisdictions indicating a willingness to enforce a prosecutor’s ultra vires promises in some limited circumstances.

Justice Cardozo once opined that, “whether the good to be attained by procuring the testimony of criminals is greater or less than the evil to be wrought by exempting them forever from prosecution for their crimes is a question of high policy.” In the Matter of Doyle, 257 N.Y. 244, 261, 177 N.E. 489, 495 (1931). So too, it might be added, is the question which arises when criminals are to be given limited concessions, rather than full immunity.

In a better world perhaps, police and prosecutors would not have to engage in such matters of high policy. However, because not all crimes are committed in the bright light of day before swarms of credible and cooperative citizen witnesses, it is often necessary for police and prosecutors to rely upon, and even bargain with, informants of unsavory character and dubious credibility. Cf. Commonwealth v. Schaeffer, 370 Pa.Super. 179, 259, 536 A.2d 354, 394 (1987) (Kelly, J. concurring and dissenting), allocatur granted 520 Pa. 596, 552 A.2d 251 (1988). The necessity of such reliance is regrettable, and not without its costs and potential pitfalls. Cf. Commonwealth ex rel. Saltzburg v. Fulcomer, 382 Pa.Super. 422, 426, 555 A.2d 912, 913 n. 2 (1989). Ordinarily, however, the wisdom and propriety of relying upon and/or bargaining with criminal suspects for their cooperation is left to the discretion of the police and the prosecution. Cf. Commonwealth v. Trudell, 371 Pa.Super. 353, 367, 538 A.2d 53, 60 (1988) (Brosky, J., concurring) (criticizing the prosecution’s reliance upon all but convicted perjurers, but conceding the witnesses’ competency to testify and the validity of the verdict entered based, in part, on their testimony).

The office of Attorney General, and likewise the office of District Attorney, are highly respected in this Commonwealth, and have been vested with broad powers regarding the enforcement of the criminal law. Within their legitimate scope of authority, they have broad discretion which is subject to judicial review and restraint only upon a plain demonstration of a clear abuse, i.e. an arbitrary, vindictive, or discriminatory exercise of prosecutorial discretion. See generally Commonwealth v. Rocco, 375 Pa.Super. 330, 544 A.2d 496 (1988); Commonwealth v. Stinnett, 356 Pa.Super. 83, 95, 514 A.2d 154, 160 (1986); In re Wood, 333 Pa.Super. 597, 482 A.2d 1033 (1984); Commonwealth v. Eisemann, 308 Pa.Super. 16, 453 A.2d 1045 (1982).

Nonetheless, like all authority in our constitutional form of government, the authority of the Attorney General and District Attorneys of this Commonwealth is subject to limitations, checks and balances — some procedural, some legislative, and some constitutional. While prosecutors and police are given broad authority to resolve among themselves the high policy questions involved in balancing the benefits of a criminal’s cooperation and/or testimony against the cost of the concessions offered as inducements (as well as the risks inherent in reliance upon such nefarious characters), there are limits to that discretion. Among those limits is the requirement that plea agreements must be presented for approval or rejection by the trial court. See Pa.R.Crim.P. 319.

It is true that one of the principle reasons for promulgation of Pa.R.Crim.P. 319, was the fact that off-the-record plea agreements were previously the source of considerable controversy and litigation regarding the existence and terms of alleged plea agreements. See Pa.R.Crim.P. 319, comment. When, as here, the Commonwealth and the appellant agree as to the terms of the out-of-court agreement, and in fact assert that the terms were reduced to a writing signed by the parties, the aim of Pa.R.Crim.P. 319 to eliminate the potential for conflict as to the terms of the plea agreement may arguably be fulfilled without strict compliance with Pa.R.Crim.P. 319. This, however, is not the rule’s sole function.

In this Commonwealth, the legislature has the ultimate authority to prescribe the penalties which a court may impose upon a defendant following conviction of a criminal offense. See Commonwealth v. Carr, 375 Pa.Super. 168, 174-75, 543 A.2d 1232, 1235 (1988) (citing cases). Exercising that authority, the legislature has set sentencing ranges for the various offenses, and provided a framework within which the judiciary has been vested with broad discretion to impose sentence. See generally 42 Pa.C.S.A. §§ 9701 et seq. The legislature has vested prosecutors, on the other hand, with only narrowly limited authority in sentencing matters. See e.g. 42 Pa.C.S.A. §§ 9712(b); 9713(b); 9714(b); 9715(b); see also Commonwealth v. Pittman, 515 Pa. 272, 528 A.2d 138 (1987).

To the extent that a proposed plea agreement goes beyond the legitimate discretionary authority vested in the prosecutor, and seeks to bind the sentencing authority vested in the judiciary, court approval of a proposed plea agreement via Pa.R.Crim.P. 319 involves a substantive exercise of judicial sentencing discretion, as well as an act of procedural guardianship. To direct specific performance of a written but judicially unapproved plea agreement in such cases would not only ignore impermissibly the clear mandate of Pa.R.Crim.P. 319 requiring judicial approval, but would also permit prosecutors to effectively exercise sentencing powers which our legislature has not seen fit to vest in them. This we decline to do. Accord Cunningham v. Novak, 322 N.W.2d 60, 62 (Iowa 1982) (“If a prosecutor or police officer and defense counsel could by conversation among themselves effect a grant of immunity, the rules requirement of participation by a judge would be rendered meaningless”).

There is, however, no reason why this decision should unduly restrict legitimate prosecutorial discretion in negotiating concession/cooperation agreements with criminal suspects. If the bargain struck is limited to concessions which lay within the direct authority of the prosecutor to fulfill, court approval will not be necessary to fulfill the bargain. If court approval is required either to ensure the enforceability of the agreement, or because the prosecutor seeks to offer concessions which lay outside the ability of the prosecutor to fulfill (e.g. sentencing concessions), then the prosecutor may seek an expedited plea hearing and a sealed record to ensure the safety of the cooperating criminal and the investigating officers while the investigation involved continues. Cf. Commonwealth v. Fenstermaker, 515 Pa. 501, 513, 530 A.2d 414, 420 (1987) (factors supporting the sealing of court records include protecting the safety of informants and preserving the integrity of ongoing criminal investigations).

We concede that appellant has been denied the full wages he was promised by the deputy attorney general for his extraordinary services as a wired informant in the Attorney General’s investigation. Nonetheless, the deputy attorney general had no authority to bargain away the trial court’s sentencing authority.

Conclusion

Judgment of sentence affirmed.

JOHNSON, J., concurs in the result.

      . We reject this claim on the basis of the record of the clear and comprehensive oral and written plea colloquy, which plainly demonstrates the meritlessness of this contention. (N.T. 9/11/86). We note that appellant’s inconsistent answer to the inartfully drafted and perhaps confusing 12th question of the written plea colloquy is not deemed material in light of appellant’s signature on the clearly worded plea agreement and his oral representation at the plea hearing that he understood and accepted the terms of the agreement, both of which occurred the same day the written plea colloquy was signed. (N.T. 9/11/86).

      . We note, parenthetically, that one can easily see why a defendant might consider an agreement that the prosecutor would make a favorable sentencing recommendation or even merely agree to stand silent a clear bargain, even without any binding commitment as to what sentence the trial court might eventually impose. Though the sentencing court’s discretion would remain unfettered in such a context, nonetheless, it would be exercised without the influence of argument for a stiff sentence which might counterbalance or even outweigh defense counsel's plea for leniency.

      . Courts in other states have reached the same conclusion when the non-binding nature of the prosecution’s sentencing recommendation was clearly explained to the accused prior to the acceptance of a negotiated guilty plea. See State v. Cagnina, 113 Ariz. 387, 555 P.2d 345, 346 (1976); State v. Adams, 342 So.2d 818, 820 (Fla.1977); State v. Gumienny, 58 Haw. 304, 568 P.2d 1194, 1199 (1977); Almada v. State, 108 Idaho 221, 697 P.2d 1235, 1237 (1985); People v. Gierbolini, 128 Ill.App.3d 794, 84 Ill.Dec. 96, 471 N.E.2d 625 (1984); Walker v. State, 420 N.E.2d 1374, 1376 (Ind.1981); Commonwealth v. Cepulonis, 9 Mass.App.Ct. 302, 400 N.E.2d 1299, 1304 (1980); People v. King, 104 Mich.App. 459, 461-63, 304 N.W.2d 605, 606 (1981); State v. Hanson, 627 P.2d 53, 55 (Utah 1981); Holler v. Commonwealth, 220 Va. 961, 265 S.E.2d 715, 718-19 (1980); see abo Annotation, Right to Withdraw Guilty Plea in State Criminal Proceeding Where Court Refuses to Grant Concessions Contemplated by Plea Bargain, 66 ALR3d 902 (1975 & 1988 Supp.) (§ 5(d) Mere promise to recommend concession; where defendant has been informed that recommendation is not binding).

      . See e.g. Commonwealth v. Fruehan, 384 Pa.Super. 156, 557 A.2d 1093 (1989); Commonwealth v. Williams, 333 Pa.Super. 77, 481 A.2d 1230 (1984); accord Commonwealth v. Kioske, supra.

      . But see Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81 (1988) (questioning Schaeffer)', Commonwealth v. Brion, 381 Pa.Super. 83, 88, 552 A.2d 1105, 1108 (1989) (finding Schaeffer overruled sub silentio by Blystone).

      . See 71 Pa.S.A. §§ 732-201 et seq.; 16 P.S. §§ 1401 et seq.; 16 P.S. §§ 9951 et seq.; see generally Steinberg, From Private Prosecution to Plea Bargaining: Criminal Prosecution, the District Attorney, and American Legal History, 30 Crime & Delinquency 568 (1984); Lagbein, The Origins of Public Prosecution at Common Law, 17 AmJ.L.Hist. 313 (1973).

      . Agreement as to the words of a plea agreement, however, does not necessarily guarantee agreement as to the meaning of those words or the parties understanding of those words. Plea hearings are intended to ensure a meeting of minds as to the meaning as well as the words of the agreement. In this regard, a written and signed plea agreement may not provide protection equivalent to that provided via a plea hearing, even as to the narrow question of the terms of the agreement.

      . A prosecutor’s sound discretion with respect to charging decisions would presumably include deference to the prosecutor’s authority to balance the relative value of the criminal informant’s cooperation in deciding whether to offer charging concessions like those in the instant case. Cf. In re Wood, supra; Commonwealth v. Eisemann, supra.

      . That appellant was unaware of this defect in the deputy attorney general’s authority and was without counsel to advise him at the time is unfortunate, but does not in our view compel approval and enforcement of the unapproved plea agreement. We hasten to add that there is every indication in the record that the Commonwealth acted throughout in the sincere, but mistaken, belief that the original bargain struck with appellant could and would be completely fulfilled. Finally, we note that the principle benefit for which appellant bargained, i.e. a substantial reduction in charges brought against him, was in fact received. Moreover, in light of appellant’s serious criminal conduct, the sentence imposed was still lenient, though not as lenient as had been expected. Hopefully, this opinion will prevent the occurrence of such misunderstandings in the future.